[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Notices]
[Pages 152-198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33157]


      

[[Page 151]]

_______________________________________________________________________

Part II





United States Sentencing Commission





_______________________________________________________________________



Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 62, No. 1 / Thursday, January 2, 1997 / 
Notices  

[[Page 152]]



UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of (1) proposed temporary, emergency guideline 
amendments increasing penalties for alien smuggling and fraudulent use 
of government-issued documents; (2) proposed temporary, emergency 
guideline amendments imposing penalties for involuntary servitude, 
peonage, and slave trade offense; (3) proposed temporary, emergency 
guideline amendments increasing the penalties for offenses involving 
list I chemicals; and (4) proposed non-emergency amendments to 
sentencing guidelines and commentary. Request for Comment. Notice of 
hearing.

-----------------------------------------------------------------------

SUMMARY: The Sentencing Commission hereby gives notice of the following 
actions: (1) pursuant to its authority under sections 203, 211, and 218 
of the Illegal Immigration Reform and Immigrant Responsibility Act of 
1996, the Commission is preparing to promulgate amendments to 
Secs. 2L1.1, 2L2.1, 2L2.2, and 2H4.1 and accompanying commentary; (2) 
pursuant to its authority under section 302 of the Comprehensive 
Methamphetamine Control Act of 1996, the Commission is preparing to 
promulgate amendments to Sec. 2D1.11 and accompanying commentary; and 
(3) pursuant to section 217(a) of the Comprehensive Crime Control Act 
of 1984 (28 U.S.C. 994 (a) and (p)), the Commission is considering 
promulgating certain other non-emergency amendments to the sentencing 
guidelines and commentary. The Commission may submit the latter, non-
emergency amendments to the Congress not later than May 1, 1997.
    This notice sets forth the emergency and other proposed amendments 
and a synopsis of the issues addressed by the amendments as well as 
additional issues for comment. The proposed amendments are presented in 
this notice in one of two formats. First, some of the amendments are 
proposed as specific revisions to a guideline or commentary. Bracketed 
text within a proposed amendment indicates alternative proposals and 
that the Commission invites comment and suggestions for appropriate 
policy choices; for example, a proposed enhancement of [3-5] levels 
means a proposed enhancement of either three, four, or five levels. 
Similarly, a proposed enhancement of [4] levels indicates that the 
Commission is considering, and invites comment on, alternative policy 
choices. Second, the Commission has highlighted certain issues for 
comment and invites suggestions for specific amendment language.

DATES: (1) Emergency Amendments. Comment on the several emergency 
amendments set forth in this notice should be received by the 
Commission not later than February 4, 1997. After considering any 
public comment, the Commission plans to address possible promulgation 
of the emergency amendments at its meeting scheduled for February 11, 
1997, at the Commission's offices in the Thurgood Marshall Federal 
Judiciary Building (meeting time to be determined).
    (2) Non-Emergency Amendments. Comment on the non-emergency 
amendments and issues set forth in this notice should be received not 
later than March 17, 1997. The Commission has scheduled a public 
hearing on the proposed non-emergency amendments for March 17, 1997, at 
the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, 
N.E,. Washington, D.C. 20002-8002.
    A person who desires to testify at the public hearing should notify 
Michael Courlander, Public Information Specialist, at (202) 273-4590 
not later than March 3, 1997. Written testimony for the hearing must be 
received by the Commission not later than March 10, 1997. Submission of 
written testimony is a requirement for testifying at the public 
hearing.

ADDRESSES: Public Comment should be sent to: United States Sentencing 
Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 
20002-8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information 
Specialist, Telephone: (202) 273-4590.

    Authority: 28 U.S.C. 994 (a), (o), (p), (x).
Richard P. Conaboy,
Chairman.

Emergency Amendments

Section 2D1.11  Unlawfully Distributing, Importing, Exporting or 
Possessing a Listed Chemical; Attempt or Conspiracy

    1. Synopsis of Proposed Amendment: This amendment implements 
section 302 of the Comprehensive Methamphetamine Control Act of 1996. 
That section raises the statutory maximum penalties under 21 U.S.C. 
841(d) and 960(d) from ten to twenty years' imprisonment. The Act also 
instructs the Commission to increase by at least two levels the offense 
levels for offenses involving list I chemicals under 21 U.S.C. 841(d) 
(1) and (2) and 960(d) (1) and (3). These offenses involve the 
possession and importation of listed chemicals knowing, or having 
reasonable cause to believe, the chemicals will be used to unlawfully 
manufacture a controlled substance. In carrying out these instructions, 
the Act requires that the offense levels be calculated proportionately 
on the basis of the quantity of controlled substance that reasonably 
could be manufactured in a clandestine setting using the quantity of 
list I chemical possessed, distributed, imported, or exported.
    Current Operation of the Guidelines: Offenses involving violations 
under the above statutes are covered under Sec. 2D1.11 (Unlawfully 
Distributing, Importing, Exporting, or Possessing a Listed Chemical). 
This guideline uses a Chemical Quantity Table to determine the base 
offense level. The guideline also has a cross reference to Sec. 2D1.1 
(Unlawfully Manufacturing, Importing, Exporting, or Trafficking) for 
cases involving the actual manufacture, or attempt to manufacture, a 
controlled substance.
    The Chemical Quantity Table was developed in two steps. First, the 
amount of listed chemical needed to produce a quantity of controlled 
substance in the Drug Quantity Table in Sec. 2D1.1 was determined. The 
amount of listed chemical was based on 50% of theoretical yield.1 
The 50% figure was used because, after much study, this figure was 
determined to be a fair estimate of the amount of controlled substance 
that typically could be produced in a clandestine laboratory.
---------------------------------------------------------------------------

    \1\ Theoretical yield is the amount of a controlled substance 
that could be produced in a perfect reaction. It is based on a 
chemical equation/mathematical formula and does not occur in 
reality.
---------------------------------------------------------------------------

    Second, the offense level in Sec. 2D1.11 was adjusted downward by 
eight levels from the level in the Drug Quantity Sec. 2D1.1. There were 
several reasons for these adjustments. One, the listed chemical 
offenses involved an intent to manufacture a controlled substance, not 
the actual manufacture, or attempt to manufacture, a controlled 
substance. For cases involving an actual or attempted manufacture of a 
controlled substance, Sec. 2D1.11 contains a cross reference to 
Sec. 2D1.1. Another reason for the reduction in offense level from the 
offense levels in Sec. 2D1.1 was the fact that statutes covering listed 
chemicals had maximum sentences of ten years' imprisonment, whereas 
some of the controlled substance offenses had

[[Page 153]]

maximum sentences of life imprisonment. If the offense level was not 
reduced in Sec. 2D1.11, almost all of the cases would have resulted in 
sentences at or exceeding the statutory maximum. A third reason was 
that it is more difficult to make an accurate determination of the 
amount of finished product based on only one listed chemical as opposed 
to several listed chemicals and/or lab equipment. By not reducing the 
offense level, there would have been the possibility that the person 
who had only one precursor would get a higher offense level than 
someone who actually manufactured the controlled substance.
    The proposed amendment raises the penalties for list I chemicals by 
two levels. The top of the Chemical Quantity Table for list I chemicals 
will now be at level 30. The offense level for list II chemicals 
remains the same. With the new statutory maximum of 20 years, the 
guidelines will now be able to better take into account aggravating 
adjustments such as those for role in the offense. Additionally, the 
increased statutory maximum will allow for higher sentences for cases 
convicted under this statute that involve the actual manufacture of a 
controlled substance.
    Proposed Amendment: Section 2D1.11(d) is amended by deleting 
subsections (d) (1)--(9) and inserting in lieu thereof the following:
    ``(d) Chemical Quality Table*

------------------------------------------------------------------------
         Listed chemicals and quantity              Base offense level  
------------------------------------------------------------------------
(1)  List I Chemicals..........................  Level 30               
    17.8 KG or more of Benzaldehyde;                                    
    20 KG or more of Benzyl Cyanide;                                    
    20 KG or more of Ephedrine;                                         
    200 G or more of Ergonovine;                                        
    400 G or more of Ergotamine;                                        
    20 KG or more of Ethylamine;                                        
    44 KG or more of Hydriodic Acid;                                    
    320 KG or more of Isoafrole;                                        
    4 KG or more of Methylamine;                                        
    1500 KG or more of N-Methylephedrine;                               
    500 KG or more of N-Methylpseudoephedrine;                          
    12.6 KG or more of Nitroethane;                                     
    200 KG or more of Norpseudoephedrine;                               
    20 KG or more of Phenylacetic Acid;                                 
    200 KG or more of Phenylpropanolamine;                              
    10 KG or more of Piperidine;                                        
    320 KG or more of Piperonal;                                        
    1.6 KG or more of Propionic Anhydride;                              
    20 KG or more of Pseudoephedrine;                                   
    320 KG or more of Safrole;                                          
    400 KG or more of 3, 4-Methylenedioxyphenyl-                        
     2-propanone;                                                       
(2)  List I Chemicals..........................  Level 28.              
    At least 5.3 KG but less than 17.8 KG of                            
     Benzaldehyde;                                                      
    At least 6 KG but less than 20 KG of Benzyl                         
     Cyanide;                                                           
    At least 6 KG but less than 20 KG of                                
     Ephedrine;                                                         
    At least 60 G but less than 200 G of                                
     Ergonovine;                                                        
    At least 120 G but less than 400 G of                               
     Ergotamine;                                                        
    At least 6 KG but less than 20 KG of                                
     Ethylamine;                                                        
    At least 13.2 KG but less than 44 KG of                             
     Hydriodic Acid;                                                    
    At least 96 KG but less than 320 KG of                              
     Isoafrole;                                                         
    At least 1.2 KG but less than 4 KG of                               
     Methylamine;                                                       
    At least 150 KG but less than 500 KG of N-                          
     Methylephedrine;                                                   
    At least 150 KG but less than 500 KG of N-                          
     Methylpseudoephedrine;                                             
    At least 3.8 KG but less than 12.6 KG of                            
     Nitroethane;                                                       
    At least 60 KG but less than 200 KG of                              
     Norpseudoephedrine;                                                
    At least 6 KG but less than 20 KG of                                
     Phenylacetic Acid;                                                 
    At least 60 KG but less than 200 KG of                              
     Phenylpropanolamine;                                               
    At least 3 KG but less than 10 KG of                                
     Piperidine;                                                        
    At least 96 KG but less than 320 KG of                              
     Piperonal;                                                         
    At least 480 G but less than 1.6 KG of                              
     Propionic Anhydride;                                               
    At least 6 KG but less than 20 KG of                                
     Pseudoephedrine;                                                   
    At least 96 KG but less than 320 KG of                              
     Safrole;                                                           
    At least 120 KG but less than 400 KG of 3,                          
     4-Methylenedioxyphenyl-2-propanone;                                
List II Chemicals                                                       
     KG or more of Acetic Anhydride;                                    
    1175 KG or more of Acetone;                                         
    20 KG or more of Benzyl Chloride;                                   
    1075 KG or more of Ethyl Ether;                                     
    1200 KG or more KG of Methyl Ethyl Ketone;                          
    10 KG or more of Potassium Permanganate;                            
    1300 KG or more of Toluene.                                         
(3)  List I Chemicals..........................  Level 26.              

[[Page 154]]

                                                                        
    At least 1.8 KG but less than 5.3 KG of                             
     Benzaldehyde;                                                      
    At least 2 KG but less than 6 KG of Benzyl                          
     Cyanide;                                                           
    At least 2 KG but less than 6 KG of                                 
     Ephedrine;                                                         
    At least 20 G but less than 60 G of                                 
     Ergonovine;                                                        
    At least 40 G but less than 120 G of                                
     Ergotamine;                                                        
    At least 2 KG but less than 6 KG of                                 
     Ethylamine;                                                        
    At least 4.4 KG but less than 13.2 KG of                            
     Hydriodic Acid;                                                    
    At least 32 KG but less than 96 KG of                               
     Isoafrole;                                                         
    At least 400 G but less than 1.2 KG of                              
     Methylamine;                                                       
    At least 50 KG but less than 150 KG of N-                           
     Methylephedrine;                                                   
    At least 50 KG but less than 150 KG of N-                           
     Methylpseudoephedrine;                                             
    At least 1.3 KG but less than 3.8 KG of                             
     Nitroethane;                                                       
    At least 20 KG but less than 60 KG of                               
     Norpseudoephedrine;                                                
    At least 2 KG but less than 6 KG of                                 
     Phenylacetic Acid;                                                 
    At least 20 KG but less than 60 KG of                               
     Phenylpropanolamine;                                               
    At least 1 KG but less than 3 KG of                                 
     Piperidine;                                                        
    At least 32 KG but less than 96 KG of                               
     Piperonal;                                                         
    At least 160 G but less than 480 G of                               
     Propionic Anhydride;                                               
    At least 2 KG but less than 6 KG of                                 
     Pseudoephedrine;                                                   
    At least 32 KG but less than 96 KG of                               
     Safrole;                                                           
    At least 40 KG but less than 120 KG of 3, 4-                        
     Methylenedioxyphenyl-2-propanone;                                  
List II Chemicals                                                       
    At least 3.3 KG but less than 11 KG of                              
     Acetic Anhydride;                                                  
    At least 352.5 KG but less than 1175 KG of                          
     Acetone;                                                           
    At least 6 KG but less than 20 KG of Benzyl                         
     Chloride;                                                          
    At least 322.5 KG but less than 1075 KG of                          
     Ethyl Ether;                                                       
    At least 360 KG but less than 1200 KG of                            
     Methyl Ethyl Ketone;                                               
    At least 3 KG but less than 10 KG of                                
     Potassium Permanganate;                                            
    At least 390 KG but less than 1300 KG of                            
     Toluene.                                                           
(4)  List I Chemicals..........................  Level 24.              
    At least 1.2 KG but less than 1.8 KG of                             
     Benzaldehyde;                                                      
    At least 1.4 KG but less than 2 KG of                               
     Benzyl Cyanide;                                                    
    At least 1.4 KG but less than 2 KG of                               
     Ephedrine;                                                         
    At least 14 G but less than 20 G of                                 
     Ergonovine;                                                        
    At least 28 G but less than 40 G of                                 
     Ergotamine;                                                        
    At least 1.4 KG but less than 2 KG of                               
     Ethylamine;                                                        
    At least 3.08 KG but less than 4.4 KG of                            
     Hydriodic Acid;                                                    
    At least 22.4 KG but less than 32 KG of                             
     Isoafrole;                                                         
    At least 280 G but less than 400 G of                               
     Methylamine;                                                       
    At least 35 KG but less than 50 KG of N-                            
     Methylephedrine;                                                   
    At least 35 KG but less than 50 KG of N-                            
     Methylpseudoephedrine;                                             
    At least 879 G but less than 1.3 KG of                              
     Nitroethane;                                                       
    At least 14 KG but less than 20 KG of                               
     Norpseudoephedrine;                                                
    At least 1.4 KG but less than 2 KG of                               
     Phenylacetic Acid;                                                 
    At least 14 KG but less than 20 KG of                               
     Phenylpropanolamine;                                               
    At least 700 G but less than 1 KG of                                
     Piperidine;                                                        
    At least 22.4 KG but less than 32 KG of                             
     Piperonal;                                                         
    At least 112 G but less than 160 G of                               
     Propionic Anhydride;                                               
    At least 1.4 KG but less than 2 KG of                               
     Pseudoephedrine;                                                   
    At least 22.4 KG but less than 32 KG of                             
     Safrole;                                                           
    At least 28 KG but less than 40 KG of 3, 4-                         
     Methylenedioxyphenyl-2-propanone;                                  
List II Chemicals                                                       
    At least 1.1 KG but less than 3.3 KG of                             
     Acetic Anhydride;                                                  
    At least 117.5 KG but less than 352.5 KG of                         
     Acetone;                                                           
    At least 2 KG but less than 6 KG of Benzyl                          
     Chloride;                                                          
    At least 107.5 KG but less than 322.5 KG of                         
     Ethyl Ether;                                                       
    At least 120 KG but less than 360 KG of                             
     Methyl Ethyl Ketone;                                               
    At least 1 KG but less than 3 KG of                                 
     Potassium Permanganate;                                            
    At least 130 KG but less than 390 KG of                             
     Toluene.                                                           
(5) List I Chemicals...........................  Level 22.              

[[Page 155]]

                                                                        
    At least 712 G but less than 1.2 KG of                              
     Benzaldehyde;                                                      
    At least 800 G but less than 1.4 KG of                              
     Benzyl Cyanide;                                                    
    At least 800 G but less than 1.4 KG of                              
     Ephedrine;                                                         
    At least 8 G but less than 14 G of                                  
     Ergonovine;                                                        
    At least 16 G but less than 28 G of                                 
     Ergotamine;                                                        
    At least 800 G but less than 1.4 KG of                              
     Ethylamine;                                                        
    At least 1.76 KG but less than 3.08 KG of                           
     Hydriodic Acid;                                                    
    At least 12.8 KG but less than 22.4 KG of                           
     Isoafrole;                                                         
    At least 160 G but less than 280 G of                               
     Methylamine;                                                       
    At least 20 KG but less than 35 KG of N-                            
     Methylephedrine;                                                   
    At least 20 KG but less than 35 KG of N-                            
     Methylpseudoephedrine;                                             
    At least 503 G but less than 879 G of                               
     Nitroethane;                                                       
    At least 8 KG but less than 14 KG of                                
     Norpseudoephedrine;                                                
    At least 800 G but less than 1.4 KG of                              
     Phenylacetic Acid;                                                 
    At least 8 KG but less than 14 KG of                                
     Phenylpropanolamine;                                               
    At least 400 G but less than 700 G of                               
     Piperidine;                                                        
    At least 12.8 KG but less than 22.4 KG of                           
     Piperonal;                                                         
    At least 64 G but less than 112 G of                                
     Propionic Anhydride;                                               
    At least 800 G but less than 1.4 KG of                              
     Pseudoephedrine;                                                   
    At least 12.8 KG but less than 22.4 KG of                           
     Safrole;                                                           
    At least 16 KG but less than 28 KG of 3, 4-                         
     Methylenedioxyphenyl-2-propanone;                                  
List II Chemicals                                                       
    At least 726 G but less than 1.1 KG of                              
     Acetic Anhydride;                                                  
    At least 82.25 KG but less than 117.5 KG of                         
     Acetone;                                                           
    At least 1.4 KG but less than 2 KG of                               
     Benzyl Chloride;                                                   
    At least 75.25 KG but less than 107.5 KG of                         
     Ethyl Ether;                                                       
    At least 84 KG but less than 120 KG of                              
     Methyl Ethyl Ketone;                                               
    At least 700 G but less than 1 KG of                                
     Potassium Permanganate;                                            
    At least 91 KG but less than 130 KG of                              
     Toluene.                                                           
(6)  List I Chemicals                            Level 20.              
    At least 178 G but less than 712 G of                               
     Benzaldehyde;                                                      
    At least 200 G but less than 800 G of                               
     Benzyl Cyanide;                                                    
    At least 200 G but less than 800 G of                               
     Ephedrine;                                                         
    At least 2 G but less than 8 G of                                   
     Ergonovine;                                                        
    At least 4 G but less than 16 G of                                  
     Ergotamine;                                                        
    At least 200 G but less than 800 G of                               
     Ethylamine;                                                        
    At least 440 G but less than 1.76 KG of                             
     Hydriodic Acid;                                                    
    At least 3.2 KG but less than 12.8 KG of                            
     Isoafrole;                                                         
    At least 40 G but less than 160 G of                                
     Methylamine;                                                       
    At least 5 KG but less than 20 KG of N-                             
     Methylephedrine;                                                   
    At least 5 KG but less than 20 KG of N-                             
     Methylpseudoephedrine;                                             
    At least 126 G but less than 503 G of                               
     Nitroethane;                                                       
    At least 2 KG but less than 8 KG of                                 
     Norpseudoephedrine;                                                
    At least 200 G but less than 800 G of                               
     Phenylacetic Acid;                                                 
    At least 2 KG but less than 8 KG of                                 
     Phenylpropanolamine;                                               
    At least 100 G but less than 400 G of                               
     Piperidine;                                                        
    At least 3.2 KG but less than 12.8 KG of                            
     Piperonal;                                                         
    At least 16 G but less than 64 G of                                 
     Propionic Anhydride;                                               
    At least 200 G but less than 800 G of                               
     Pseudoephedrine;                                                   
    At least 3.2 KG but less than 12.8 KG of                            
     Safrole;                                                           
    At least 4 KG but less than 16 KG of 3, 4-                          
     Methylenedioxyphenyl-2-propanone;                                  
List II Chemicals                                                       
    At least 440 G but less than 726 G of                               
     Acetic Anhydride;                                                  
    At least 47 KG but less than 82.25 KG of                            
     Acetone;                                                           
    At least 800 G but less than 1.4 KG of                              
     Benzyl Chloride;                                                   
    At least 43 KG but less than 75.25 KG of                            
     Ethyl Ether;                                                       
    At least 48 KG but less than 84 KG of                               
     Methyl Ethyl Ketone;                                               
    At least 400 G but less than 700 G of                               
     Potassium Permanganate;                                            
    At least 52 KG but less than 91 KG of                               
     Toluene.                                                           
(7)  List I Chemicals..........................  Level 18.              

[[Page 156]]

                                                                        
    At least 142 G but less than 178 G of                               
     Benzaldehyde;                                                      
    At least 160 G but less than 200 G of                               
     Benzyl Cyanide;                                                    
    At least 160 G but less than 200 G of                               
     Ephedrine;                                                         
    At least 1.6 G but less than 2 G of                                 
     Ergonovine;                                                        
    At least 3.2 G but less than 4 G of                                 
     Ergotamine;                                                        
    At least 160 G but less than 200 G of                               
     Ethylamine;                                                        
    At least 352 G but less than 440 G of                               
     Hydriodic Acid;                                                    
    At least 2.56 KG but less than 3.2 KG of                            
     Isoafrole;                                                         
    At least 32 G but less than 40 G of                                 
     Methylamine;                                                       
    At least 4 KG but less than 5 KG of N-                              
     Methylephedrine;                                                   
    At least 4 KG but less than 5 KG of N-                              
     Methylpseudoephedrine;                                             
    At least 100 G but less than 126 G of                               
     Nitroethane;                                                       
    At least 1.6 KG but less than 2 KG of                               
     Norpseudoephedrine;                                                
    At least 160 G but less than 200 G of                               
     Phenylacetic Acid;                                                 
    At least 1.6 KG but less than 2 KG of                               
     Phenylpropanolamine;                                               
    At least 80 G but less than 100 G of                                
     Piperidine;                                                        
    At least 2.56 KG but less than 3.2 KG of                            
     Piperonal;                                                         
    At least 12.8 G but less than 16 G of                               
     Propionic Anhydride;                                               
    At least 160 G but less than 200 G of                               
     Pseudoephedrine;                                                   
    At least 2.56 KG but less than 3.2 KG of                            
     Safrole;                                                           
    At least 3.2 KG but less than 4 KG of 3, 4-                         
     Methylenedioxyphenyl-2-propanone;                                  
List II  Chemicals                                                      
    At least 110 G but less than 440 G of                               
     Acetic Anhydride;                                                  
    At least 11.75 KG but less than 47 KG of                            
     Acetone;                                                           
    At least 200 G but less than 800 G of                               
     Benzyl Chloride;                                                   
    At least 10.75 KG but less than 43 KG of                            
     Ethyl Ether;                                                       
    At least 12 KG but less than 48 KG of                               
     Methyl Ethyl Ketone;                                               
    At least 100 G but less than 400 G of                               
     Potassium Permanganate;                                            
    At least 13 KG but less than 52 KG of                               
     Toluene.                                                           
(8)  List I Chemicals..........................  Level 16.              
    At least 107 G but less than 142 G of                               
     Benzaldehyde;                                                      
    At least 120 G but less than 160 G of                               
     Benzyl Cyanide;                                                    
    At least 120 G but less than 160 G of                               
     Ephedrine;                                                         
    At least 1.2 G but less than 1.6 G of                               
     Ergonovine;                                                        
    At least 2.4 G but less than 3.2 G of                               
     Ergotamine;                                                        
    At least 120 G but less than 160 G of                               
     Ethylamine;                                                        
    At least 264 G but less than 352 G of                               
     Hydriodic Acid;                                                    
    At least 1.92 KG but less than 2.56 KG of                           
     Isoafrole;                                                         
    At least 24 G but less than 32 G of                                 
     Methylamine;                                                       
    At least 3 KG but less than 4 KG of N-                              
     Methylephedrine;                                                   
    At least 3 KG but less than 4 KG of N-                              
     Methylpseudoephedrine;                                             
    At least 75 G but less than 100 G of                                
     Nitroethane;                                                       
    At least 1.2 KG but less than 1.6 KG of                             
     Norpseudoephedrine;                                                
    At least 120 G but less than 160 G of                               
     Phenylacetic Acid;                                                 
    At least 1.2 KG but less than 1.6 KG of                             
     Phenylpropanolamine;                                               
    At least 60 G but less than 80 G of                                 
     Piperidine;                                                        
    At least 1.92 KG but less than 2.56 KG of                           
     Piperonal;                                                         
    At least 9.6 G but less than 12.8 G of                              
     Propionic Anhydride;                                               
    At least 120 G but less than 160 G of                               
     Pseudoephedrine;                                                   
    At least 1.92 KG but less than 2.56 KG of                           
     Safrole;                                                           
    At least 2.4 KG but less than 3.2 KG of 3,                          
     4-Methylenedioxyphenyl-2-propanone;                                
List II Chemicals                                                       
    At least 88 G but less than 110 G of Acetic                         
     Anhydride;                                                         
    At least 9.4 KG but less than 11.75 KG of                           
     Acetone;                                                           
    At least 160 G but less than 200 G of                               
     Benzyl Chloride;                                                   
    At least 8.6 KG but less than 10.75 KG of                           
     Ethyl Ether;                                                       
    At least 9.6 KG but less than 12 KG of                              
     Methyl Ethyl Ketone;                                               
    At least 80 G but less than 100 G of                                
     Potassium Permanganate;                                            
    At least 10.4 KG but less than 13 KG of                             
     Toluene.                                                           
(9)  List I Chemicals..........................  Level 14.              

[[Page 157]]

                                                                        
    At least 2.7 KG but less than 3.6 KG of                             
     Anthranilic Acid;                                                  
    At least 80.25 G but less than 107 G of                             
     Benzaldehyde;                                                      
    At least 90 G but less than 120 G of Benzyl                         
     Cyanide;                                                           
    At least 90 G but less than 120 G of                                
     Ephedrine;                                                         
    At least 900 MG but less than 1.2 G of                              
     Ergonovine;                                                        
    At least 1.8 G but less than 2.4 G of                               
     Ergotamine;                                                        
    At least 90 G but less than 120 G of                                
     Ethylamine;                                                        
    At least 198 G but less than 264 G of                               
     Hydriodic Acid;                                                    
    At least 1.44 G but less than 1.92 KG of                            
     Isoafrole;                                                         
    At least 18 G but less than 24 G of                                 
     Methylamine;                                                       
    At least 3.6 KG but less than 4.8 KG of N-                          
     Acetylanthranilic Acid;                                            
    At least 2.25 KG but less than 3 KG of N-                           
     Methylephedrine;                                                   
    At least 2.25 KG but less than 3 KG of N-                           
     Methylpseudoephedrine;                                             
    At least 56.25 G but less than 75 G of                              
     Nitroethane;                                                       
    At least 900 G but less than 1.2 KG of                              
     Norpseudoephedrine;                                                
    At least 90 G but less than 120 G of                                
     Phenylacetic Acid;                                                 
    At least 900 G but less than 1.2 KG of                              
     Phenylpropanolamine;                                               
    At least 45 G but less than 60 G of                                 
     Piperidine;                                                        
    At least 1.44 KG but less than 1.92 KG of                           
     Piperonal;                                                         
    At least 7.2 G but less than 9.6 G of                               
     Propionic Anhydride;                                               
    At least 90 G but less than 120 G of                                
     Pseudoephedrine;                                                   
    At least 1.44 G but less than 1.92 KG of                            
     Safrole;                                                           
    At least 1.8 KG but less than 2.4 KG of 3,                          
     4-Methylenedioxyphenyl-2-propanone;                                
List II Chemicals                                                       
    At least 66 G but less than 88 G of Acetic                          
     Anhydride;                                                         
    At least 7.05 KG but less than 9.4 KG of                            
     Acetone;                                                           
    At least 120 G but less than 160 G of                               
     Benzyl Chloride;                                                   
    At least 6.45 KG but less than 8.6 KG of                            
     Ethyl Ether;                                                       
    At least 7.2 KG but less than 9.6 KG of                             
     Methyl Ethyl Ketone;                                               
    At least 60 G but less than 80 G of                                 
     Potassium Permanganate;                                            
    At least 7.8 KG but less than 10.4 KG of                            
     Toluene.                                                           
(10)  List I Chemicals.........................  Level 12.              
    Less than 2.7 KG of Anthranilic Acid;                               
    Less than 80.25 G of Benzaldehyde                                   
    Less than 90 G of Benzyl Cyanide;                                   
    Less than 90 G of Ephedrine;                                        
    Less than 900 MG of Ergonovine;                                     
    Less than 1.8 G of Ergotamine;                                      
    Less than 90 G of Ethylamine;                                       
    Less than 198 G of Hydriodic Acid;                                  
    Less than 1.44 G of Isoafrole;                                      
    Less than 18 G of Methylamine;                                      
    Less than 3.6 KG of N-Acetylanthranilic                             
     Acid;                                                              
    Less than 2.25 KG of N-Methylephedrine;                             
    Less than 2.25 KG of N-                                             
     Methylpseudoephedrine;                                             
    Less than 56.25 G of Nitroethane;                                   
    Less than 900 G of Norpseudoephedrine;                              
    Less than 90 G of Phenylacetic Acid;                                
    Less than 900 G of Phenylpropanolamine;                             
    Less than 45 G of Piperidine;                                       
    Less than 1.44 KG of Piperonal;                                     
    Less than 7.2 G of Propionic Anhydride;                             
    Less than 90 G of Pseudoephedrine;                                  
    Less than 1.44 G of Safrole;                                        
    Less than 1.8 KG of 3, 4-                                           
     Methylenedioxyphenyl-2-propanone;                                  
List II Chemicals                                                       
    Less than 66 G of Acetic Anhydride;                                 
    Less than 7.05 KG of Acetone;                                       
    Less than 120 G of Benzyl Chloride;                                 
    Less than 6.45 KG of Ethyl Ether;                                   
    Less than 7.2 KG of Methyl Ethyl Ketone;                            
    Less than 60 G of Potassium Permanganate;                           
    Less than 7.8 KG of Toluene.                                        
------------------------------------------------------------------------

    The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is 
amended in Note 4(a) by deleting ``three kilograms'' and inserting in 
lieu thereof ``300 grams''; by deleting ``24'' each time it appears and 
inserting in lieu thereof ``26''; and by deleting ``14'' and inserting 
in lieu thereof ``16''.

Section 2L1.1--Alien Smuggling

    2. Synopsis of Proposed Amendment: This amendment implements 
section 203 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996. Section 203 directs the Commission to amend 
the guidelines for offenses related to smuggling, transporting, or 
harboring illegal aliens.

[[Page 158]]

The legislation directs the Commission to:
    ``(A) increase the base offense level for such offenses at least 3 
offense levels above the applicable level in effect on the date of the 
enactment of this Act;
    (B) review the sentencing enhancement for the number of aliens 
involved (U.S.S.G. 2L1.1(b)(2)), and increase the sentencing 
enhancement by at least 50 percent above the applicable enhancement in 
effect on the date of the enactment of this Act;
    (C) impose an appropriate sentencing enhancement upon an offender 
with 1 prior felony conviction arising out of a separate and prior 
prosecution for an offense that involved the same or similar underlying 
conduct as the current offense, to be applied in addition to any 
sentencing enhancement that would otherwise apply pursuant to the 
calculation of the defendant's criminal history category; * * * [and an 
additional enhancement for 2 or more priors];
    (E) impose an appropriate sentencing enhancement on a defendant 
who, in the course of committing an offense described in this 
subsection (i) murders or otherwise causes death, bodily injury, or 
serious bodily injury to a defendant; (ii) uses or brandishes a firearm 
or other dangerous weapon; or (iii) engages in conduct that consciously 
or recklessly places another in serious danger of death or serious 
bodily injury;
    (F) consider whether a downward adjustment is appropriate if the 
offense is a first offense and involves the smuggling only of the 
alien's spouse or child * * * ''
    The amendment provides for a higher base offense level as required 
by the legislation. In addition, the amendment provides for new 
specific offense characteristics outlined in the legislation and 
adjusts the current specific offense characteristics as directed by the 
legislation. Finally, the amendment provides for clarifying commentary.
    Proposed Amendment: Section 2L1.1(a)(1) is amended by deleting 
``20'' and inserting in lieu thereof ``[23-25]''.
    Section 2L1.1(a)(2) is amended by deleting ``9'' and inserting in 
lieu thereof ``[12-14]''.
    Section 2L1.1(b) is amended by deleting:
    ``(1) If the defendant committed the offense other than for profit 
and the base offense level is determined under subsection (a)(2), 
decrease by 3 levels.
    (2) If the offense involved the smuggling, transporting, or 
harboring of six or more unlawful aliens, increase as follows:

------------------------------------------------------------------------
    Number of unlawful aliens smuggled,                                 
          transported, or harbored                Increase in level     
------------------------------------------------------------------------
(A)   6-24.................................  Add 2.                     
(B)   25-99................................  Add 4.                     
(C)   100 or more..........................  Add 6.                     
------------------------------------------------------------------------

    (3) If the defendant is an unlawful alien who has been deported 
(voluntarily or involuntarily) on one or more occasions prior to the 
instant offense, and the offense level determined above is less than 
level 8, increase to level 8.''
and inserting in lieu thereof:
    ``(1) If the offense involves the smuggling, transporting, or 
harboring only of the defendant's spouse or child, decrease by [2-3] 
levels.
    (2) If the offense involved the smuggling, transporting, or 
harboring of three or more unlawful aliens, increase as follows:

------------------------------------------------------------------------
    Number of unlawful aliens smuggled,                                 
          transported, or harbored                Increase in level     
------------------------------------------------------------------------
(A)   3-5..................................  Add 1.                     
(B)   6-11.................................  Add 3.                     
(C)   12-24................................  Add 5.                     
(D)   25-99................................  Add 7.                     
(E)   100 or more..........................  Add 9.                     
------------------------------------------------------------------------

    (3) [Option 1: If the defendant committed the instant offense 
subsequent to sustaining (A) one conviction for an immigration and 
naturalization offense, increase by 2 levels; or (B) two convictions 
for immigration and naturalization offenses each arising out of 
separate prosecutions, increase by 4 levels.]
    [Option 2: If the defendant at the time of sentencing had been 
previously convicted of (A) one immigration and naturalization offense 
arising out of a separate and prior prosecution, increase by 2 levels; 
or (B) two immigration and naturalization offenses each arising out of 
separate prosecutions, increase by 4 levels.]
    (4) (A) If a firearm was discharged, increase by 6 levels, but if 
the resulting offense level is less than level [22-24], increase to 
level [22-24];
    (B) if a dangerous weapon (including a firearm) was brandished or 
otherwise used, increase by 4 levels, but if the resulting offense 
level is less than level [20-22], increase to level [20-22];
    (C) if a dangerous weapon (including a firearm) was possessed, 
increase by 2 levels, but if the resulting offense level is less than 
level [18-20], increase to level [18-20].
    [Option 1: (D) if the offense involved recklessly creating a 
substantial risk of death or serious bodily injury to another person, 
increase by 2 levels, but if the resulting offense level is less than 
level [18-20], increase to level [18-20]].
    [Option 2: (5) If the offense involved recklessly creating a 
substantial risk of death or serious bodily injury to another person, 
increase by 2 levels, but if the resulting offense level is less than 
level [18-20], increase to level [18-20].
    (6) If any person died or sustained bodily injury as a result of 
the offense, increase the offense level accordingly:


(1)  Bodily Injury.......................  Add 2 levels.                
(2)  Serious Bodily Injury...............  Add 4 levels.                
(3)  Permanent or Life-Threatening Bodily  Add 6 levels.                
 Injury.                                                                
(4)  Death...............................  Add 8 levels.                
                                                                        

    (c) Cross Reference.

    If any person was killed under circumstances that would 
constitute murder under 18 U.S.C. Sec. 1111 had such killing taken 
place within the special maritime and territorial jurisdiction of 
the United States, apply the appropriate murder guideline from 
Chapter two, Part A, Subpart 1.''

    The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is 
amended in Note 5 by deleting ``dangerous or inhumane treatment, death 
or bodily injury, possession of a dangerous weapon, or''.
    The Commentary to Sec. 2L1.1 captioned ``Application Notes is 
amended by inserting the following additional notes:
    ``[7. Under subsections (b)(4)(A) and (b)(4)(B), the defendant is 
accountable if (A) the defendant discharges, brandishes, or otherwise 
uses a firearm, or (B) another person discharges, brandishes, or 
otherwise uses a firearm and the defendant is aware of the presence of 
the firearm. Under subsection (b)(4)(C), the defendant is accountable 
if the defendant or another person possesses a dangerous weapon during 
the offense.]
    8. Prior felony conviction(s) resulting in an adjustment under 
subsection (b)(3) are also counted for purposes of determining criminal 
history points pursuant to Chapter Four, Part A (Criminal History).
    9. Reckless conduct triggering the adjustment from subsection(b)(5) 
can vary widely. Such conduct may include, but is not limited to, 
transporting persons in the trunk or engine compartment of a motor 
vehicle, carrying substantially more passengers than the rated capacity 
of a motor vehicle or vessel, or harboring persons in a crowded, 
dangerous, or inhumane condition. If the reckless conduct triggering 
the adjustment in subsection (b)(4)(C) includes only conduct related to 
fleeing from a law enforcement officer, do not apply an adjustment from 
Sec. 3C1.2 (Reckless Endangerment During Flight). [Do not apply the 
adjustment in subsection (b)(4)(D) if the reckless

[[Page 159]]

conduct that created a substantial risk of death or serious bodily 
injury includes only conduct related to weapon possession or use.]
    10. An `immigration and naturalization offense'' means any offense 
covered by Chapter 2, Part L.
    11. For purposes of this section, the term ``child'' is defined at 
section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 
Sec. 1101(b)(1)) and ``spouse'' is defined at section 101(a)(35) of the 
Immigration and Nationality Act (8 U.S.C. Sec. 1101(a)(35)).''
    The Commentary to Sec. 2L1.1 captioned ``Background'' is amended by 
deleting the following:
    ``A specific offense characteristic provides a reduction if the 
defendant did not commit the offense for profit. The offense level 
increases with the number of unlawful aliens smuggled, transported, or 
harbored.''
    The Commentary to Sec. 2L1.1 captioned ``Background'' is amended by 
inserting the following after ``In large scale'':
    ``smuggling or harboring''.

Section 2L2.1 and 2L2.2--Immigration Document Fraud

    3. Synopsis of Proposed Amendment: This amendment implements 
section 211 of the Illegal Immigration Reform and Immigrant 
Responsibility act of 1996. Section 211 directs the Commission to amend 
the guidelines for offenses related to the fraudulent use of government 
issued documents. The Commission is directed to:
    ``(A) increase the base offense level for such offenses at least 2 
offense levels above the level in effect on the date of the enactment 
of this Act;
    (B) review the sentencing enhancement for the number of documents 
or passports involved (U.S.S.G. 2L2.1(b)(2)), and increase the upward 
enhancement by at least 50 percent above the applicable enhancement in 
effect on the date of the enactment of this Act;
    (C) impose an appropriate sentencing enhancement upon an offender 
with 1 prior felony conviction arising out of a separate and prior 
prosecution for an offense that involved the same or similar underlying 
conduct as the current offense, to be applied in addition to any 
sentencing enhancement that would otherwise apply pursuant to the 
calculation of the defendant's criminal history category; . . . [and an 
additional enhancement for 2 or more priors];''
    The amendment provides for a higher base offense level as required 
by the legislation. In addition, the amendment provides for a new 
specific offense characteristic for defendants who have one or more 
prior convictions for the same or similar conduct--as outlined in the 
legislation--and adjusts the current specific offense characteristics 
as directed by the legislation and consistent with other guidelines. 
Finally, the amendment provides for clarifying commentary.
    Proposed Amendment: Section 2L2.1 is amended by deleting ``9'' and 
inserting in lieu thereof ``[11-13]''.
    Section 2L2.1(b) is amended by deleting:
    ``(1) If the defendant committed the offense other than for profit, 
decrease by 3 levels.
    (2) If the offense involved six or more documents or passports, 
increase as follows:

------------------------------------------------------------------------
       Number of documents/passports              Increase in level     
------------------------------------------------------------------------
(A)  6-24..................................  Add 2.                     
(B)  25-99.................................  Add 4.                     
(C)  100 or more...........................  Add 6.''                   
------------------------------------------------------------------------

and insert in lieu thereof:
    ``(1) [Option 1: If the defendant committed the offense other than 
for profit and had not been convicted of an immigration and 
naturalization offense prior to the commission of the instant offense, 
decrease by 3 levels.]
    [Option 2: If the offense involves documents only related to the 
defendant's spouse or child, decrease by [2-3] levels.]
    (2) If the offense involved three or more documents or passports, 
increase as follows:

------------------------------------------------------------------------
       Number of documents/passports              Increase in level     
------------------------------------------------------------------------
(A)  3-5...................................  Add 1.                     
(B)  6-11..................................  Add 3.                     
(C)  12-24.................................  Add 5.                     
(D)  25-99.................................  Add 7.                     
(E)  100 or more...........................  Add 9.''                   
------------------------------------------------------------------------

    Section 2L2.1(b) is amended by inserting the following additional 
subdivision:
    ``(3) [Option 1: If the defendant committed the instant offense 
subsequent to sustaining (A) one conviction for an immigration and 
naturalization offense, increase by 2 levels; or (B) two convictions 
for immigration and naturalization offenses each arising out of 
separate prosecutions, increase by 4 levels.]
    [Option 2: If the defendant at the time of sentencing had been 
previously convicted of (A) one immigration and naturalization offense 
arising out of a separate and prior prosecution, increase by 2 levels; 
or (B) two immigration and naturalization offenses each arising out of 
separate prosecutions, increase by 4 levels.]''
    The Commentary to Sec. 2L2.1 captioned ``Application Notes'' is 
amended by inserting the following additional notes:
    ``4. Prior felony conviction(s) resulting in an adjustment under 
subsection (b)(4) are also counted for purposes of determining criminal 
history points pursuant to Chapter Four, Part A (Criminal History).
    5. An ``immigration and naturalization offense'' means any offense 
covered by Chapter 2, Part L.
    6. For purposes of this section, the term ``child'' is defined at 
section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 
Sec. 1101(b)(1)) and ``spouse'' is defined at section 101(a)(35) of the 
Immigration and Nationality Act (8 U.S.C. Sec. 1101(a)(35)).''
    Section 2L2.2(a) is amended by deleting ``6'' and inserting in lieu 
thereof ``[8-10]''.
    Section 2L2.2(b) is amended by deleting ``Characteristic'' and 
inserting in lieu thereof ``Characteristics''; and by inserting the 
following new subdivision:
    ``(2) [Option 1: If the defendant committed the instant offense 
subsequent to sustaining (A) one conviction for an immigration and 
naturalization offense, increase by 2 levels; or (B) two convictions 
for immigration and naturalization offenses each arising out of 
separate prosecutions, increase by 4 levels.]
    [Option 2: If the defendant at the time of sentencing had been 
previously convicted of (A) one immigration and naturalization offense 
arising out of a separate and prior prosecution, increase by 2 levels; 
or (B) two immigration and naturalization offenses each arising out of 
separate prosecutions, increase by 4 levels.]''
    The Commentary to Sec. 2L2.2 captioned ``Application Note'' is 
amended by deleting and inserting in lieu thereof ``Notes''; and by 
inserting the following additional notes:
    ``2. Prior felony conviction(s) resulting in an adjustment under 
subsection (b)(4) are also counted for purposes of determining criminal 
history points pursuant to Chapter Four, Part A (Criminal History).
    3. An `immigration and naturalization offense' means any offense 
covered by Chapter 2, Part L.''.

Section 2H4.1--Involuntary Servitude

    4. Synopsis of Proposed Amendment: This amendment implements 
section 218 of the Illegal Immigration Reform and Immigrant 
Responsibility act of 1996. Section 218 directs the

[[Page 160]]

Commission to review the guideline for peonage, involuntary servitude 
and slave trade offenses and amend the guideline, as necessary, to:
    ``(A) reduce or eliminate any unwarranted disparity * * * between 
the sentences for peonage, involuntary servitude, and slave trade 
offenses, and the sentences for kidnapping offenses and alien 
smuggling;
    (B) ensure that the applicable guidelines for defendants convicted 
of peonage, involuntary servitude, and slave trade offenses are 
sufficiently stringent to deter such offenses and adequately reflect 
the heinous nature of such offenses; and
    (C) ensure that the guidelines reflect the general appropriateness 
of enhanced sentences for defendants whose peonage, involuntary 
servitude, or slave trade offenses involve, (i) a large number of 
victims; (ii) the use or threatened use of a dangerous weapon; or (iii) 
a prolonged period of peonage or involuntary servitude.''
    The amendment generally tracks the structure of the kidnapping 
guideline.
    Section 2H4.1 is amended by deleting the section in its entirety 
and replacing in lieu thereof the following:
    ``Sec. 2H4.1. Peonage, Involuntary Servitude, and Slave Trade
    (a) Base Offense Level (Apply the greater):
    (1) [18-24]
    (b) Specific Offense Characteristics
    (1) (A) If any victim sustained permanent or life-threatening 
bodily injury, increase by [4-6] levels; (B) if any victim sustained 
serious bodily injury, increase by [2-4] levels.
    (2) If a dangerous weapon was used, increase by [2-4] levels.
    (3) If any victim was held in a condition of servitude or peonage 
for (A) more than one year, increase by [3-5] levels; (B) between 180 
days and one year, increase by [2-4] levels; (C) more than thirty days 
but less than 180 days, increase by [1-3] level.
    (4) If any other offense was committed during the commission of or 
in connection with the servitude, peonage, or slave trade offense, 
increase to the greater of:
    (A) 2 plus the offense level as determined above, or
    (B) 2 plus the offense level from the offense guideline applicable 
to that other offense, but in no event greater than level 43.
Commentary
    Statutory Provisions: 18 U.S.C. Secs. 241, 1581-1588.
    Application Notes:
    1. Under subsection (b)(4), `any other offense * * * committed 
during the commission of or in connection with the servitude, peonage, 
or slave trade offense' means any conduct that constitutes an offense 
under federal, state, or local law (other than an offense that is 
itself covered under Chapter Two, Part H, Subpart 4). See the 
Commentary in Sec. 2H1.1 for an explanation of how to treat a count of 
conviction which sets forth more than one ``other'' offense.
    2. Definitions of `serious bodily injury' and `permanent or life-
threatening bodily injury' are found in the Commentary to Sec. 1B1.1 
(Application Instructions).
    3. `A dangerous weapon was used' means that a firearm was 
discharged, or a `firearm' or `dangerous weapon' was `otherwise used'' 
(as defined in the Commentary to Sec. 1B1.1 (Application 
Instructions)).
    4. If the offense involved the holding of more than 10 victims in a 
condition of involuntary servitude or peonage, an upward departure may 
be warranted.
    Background: This section covers statutes that prohibit peonage, 
involuntary servitude, and slave trade. For purposes of deterrence and 
just punishment, the minimum base offense level is [18-24].''.
    Issue for Comment: Section 218 of the Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996 directs the Commission to 
ensure that the guidelines reflect the general appropriateness of 
enhanced sentences for defendants whose peonage, involuntary servitude, 
or slave trade offenses involve a large number of victims. The 
Commission seeks comment on whether the current enhancements provided 
under the guidelines' multiple count provisions are sufficient to 
ensure appropriately enhanced sentences when peonage, involuntary 
servitude, or slave trade offenses involve a large number of victims or 
whether a new specific offense characteristic for a large number of 
victims is needed.

Non-Emergency Amendments

Section 3A1.4  Terrorism

    5. Synopsis of Proposed Amendment: This amendment proposes to make 
permanent the emergency amendment promulgated by the Commission to 
implement section 730 of the Antiterrorism and Effective Death Penalty 
Act of 1996 (Pub. L. 104-132; 110 Stat. 1214). That section gave the 
Commission emergency authority, under section 21(a) of the Sentencing 
Act of 1987, to amend the sentencing guidelines so that the Chapter 3 
adjustment in Sec. 3A1.4, relating to international terrorism, applies 
more broadly to Federal crimes of terrorism, as defined in section 
2332b(g) of title 18, United States Code. By vote of the Commission, 
the emergency amendment became effective November 1, 1996. However, 
under the terms of section 21(a) of the Sentencing Act of 1987, the 
emergency amendment will no longer be in effect after submission of the 
next report to Congress under 28 U.S.C. Sec. 994(p) unless in the next 
report, the Commission submits (and Congress does not disapprove) an 
amendment to make it permanent.
    Proposed Amendment: Section 3A1.4 is amended in the title by 
deleting ``International''.
    Section 3A1.4(a) is amended by deleting ``international'' and 
inserting in lieu thereof ``a federal crime of''.
    The Commentary to Sec. 3A1.4 captioned ``Application Notes'' is 
amended in Note 1 in the first sentence by deleting ``international'' 
and inserting in lieu thereof ``a federal crime of''; and in the second 
sentence by deleting ``International'' and inserting in lieu thereof 
``Federal crime of''; and by deleting ``2331'' and inserting in lieu 
thereof ``2332b(g)''.

Section 1B1.1  Application Instructions

    6. Synopsis of Proposed Amendment: This is a two-part amendment to 
Sec. 1B1.1 (Application Instructions). First, the amendment corrects a 
technical error in Sec. 1B1.1(b). Second, the amendment expands the 
definition of ``offense'' to specify what is meant by the term 
``instant offense.'' This term is used to distinguish the current or 
``instant'' offense from prior criminal offenses. Currently, this term 
is not defined and has repeatedly raised questions about its 
application. This amendment defines this term to mean the offense of 
conviction and relevant conduct, unless a different meaning is 
expressly stated or is otherwise clear from the context.
    Two conforming amendments are necessary. The first conforming 
amendment adds commentary defining the term ``instant offense'' in 
relation to Sec. 3C1.1. Section 3C1.1 requires more extensive 
commentary regarding this term because of the variety of situations 
covered by this guideline. The second conforming amendment makes 
explicit that, with respect to Secs. 4B1.1 and 4B1.2, the ``instant 
offense'' is the offense of conviction. Currently, Sec. 4B1.1 expressly 
states this in subdivision (2), but not in subdivision (1).
    Proposed Amendment: Section 1B1.1(b) is amended by inserting ``, 
cross references, and special instructions'' immediately following 
``characteristics''.

[[Page 161]]

    The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is 
amended in Note 1(l) by inserting as the second sentence ``The term 
`instant' is used in connection with `offense' when, in the context, it 
is necessary to distinguish the current or `instant' offense from prior 
criminal offenses.''.
    The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is 
amended by inserting the following additional note at the end:
    ``8. `During the investigation or prosecution of the instant 
offense' means during, and in relation to, the investigation or 
prosecution of the federal offense of which the defendant is convicted 
and any offense or related civil violation, committed by the defendant 
or another person, that was part of the same investigation or 
prosecution, whether or not such offense resulted in conviction or such 
violation resulted in the imposition of civil penalties. It is not 
necessary that the obstructive conduct pertain to the particular count 
of which the defendant was convicted.
    `During the sentencing of the instant offense' means during, and in 
relation to, the sentencing phase of the process, including the 
preparation of the presentence report.''.
    Section 4B1.1 is amended by deleting ``of the instant offense'' and 
inserting in lieu thereof ``the defendant committed the instant offense 
of conviction''.
    Section 4B1.2(3) is amended by inserting ``of conviction'' 
immediately before ``subsequent''.

Section 1B1.2  Applicable Guidelines

    7. Synopsis of Proposed Amendment: This amendment amends Sec. 1B1.2 
(Applicable Guidelines) and the Statutory Index to clarify that, except 
as otherwise provided in the Introduction to the Statutory Index, the 
Statutory Index will specify the Chapter Two offense guideline most 
applicable to an offense of conviction.
    Proposed Amendment: The Commentary to Sec. 1B1.2 captioned 
``Application Notes'' is amended in Note 1 by deleting ``The Statutory 
Index (Appendix A) provides a listing to assist in this 
determination.'' and inserting in lieu thereof ``Except as otherwise 
provided in the Introduction to the Statutory Index, the Statutory 
Index specifies the offense guideline section(s) in Chapter Two most 
applicable to the offense of conviction.''; by inserting ``in the 
Statutory Index'' immediately following ``referenced''; by inserting 
``more than one offense guideline section may be referenced in the 
Statutory Index for that particular statute and'' immediately following 
``offense guidelines,''; by inserting ``of the referenced'' immediately 
following ``determine which''; and by deleting ``section'' immediately 
before ``applies'' and inserting in lieu thereof ``sections''.
    The Introduction to Appendix A is amended in the first paragraph by 
inserting ``Therefore, as a general rule, when determining the 
guideline section from Chapter Two most applicable to the offense of 
conviction for purposes of Sec. 1B1.1, use the guideline referenced for 
that statute in this index.'' after the first sentence; deleting ``If, 
in an atypical case, the guideline section indicated for the statute of 
conviction is inappropriate because of the particular conduct involved, 
use the guideline section most applicable to the nature of the offense 
conduct charged in the count of which the defendant was convicted. (See 
Sec. 1B1.2.)''; and by inserting ``referenced'' immediately before 
``for the substantive''.
    The Introduction to Appendix A (Statutory Index) is amended by 
moving the second paragraph to the end of the first paragraph.
    The Introduction to Appendix A (Statutory Index) is amended by 
deleting the second (formerly the third) paragraph as follows:
    ``For those offenses not listed in this index, the most analogous 
guideline is to be applied. (See Sec. 2X5.1.)''.,
    And inserting in lieu thereof:
    ``However, there are exceptions to the general rule set forth 
above. If the statute of conviction (1) is not listed in this index; or 
(2) is listed in this index but the guideline section referenced for 
that statute is no longer appropriate to cover the offense conduct 
charged because of changes in law not yet reflected in this index, use 
the most analogous guideline. (See Sec. 2X5.1.)''.

Section 1B1.3  Relevant Conduct

    8. Synopsis of Proposed Amendment: This amendment incorporates into 
Sec. 1B1.3 (Relevant Conduct) the holding in United States v. Hill, 79 
F.3d 1477 (6th Cir. 1996), that when two controlled substance 
transactions are conducted more than one year apart, the fact that the 
same controlled substance was involved in both transactions is 
insufficient, without more, to demonstrate that the transactions were 
part of the ``same course of conduct'' or ``common scheme or plan''.
    Proposed Amendment: The Commentary to Sec. 1B1.3 captioned 
``Application Notes'' is amended in Note 9(B) by deleting ``For 
example, where'' and inserting in lieu thereof ``If''; and by inserting 
after the fourth sentence ``For example, if two controlled substance 
transactions are conducted more than one year apart, the fact that the 
transactions involved the same controlled substance, without more 
information, is insufficient to show that they are part of the same 
course of conduct or common scheme or plan.'' after the fourth 
sentence.
    9. Synopsis of Proposed Amendment: This amendment addresses the 
issue of whether acquitted conduct may be considered for sentencing 
purposes. Option 1 of this amendment excludes the use of acquitted 
conduct as a basis for determining the guideline range. Option 1 has 
two suboptions, either or both of which could be added. Option 1(A) 
adds the bracketed language, in the guideline and application note, 
providing that acquitted conduct shall be considered if established 
independently of evidence admitted at trial. Option 1(B) invites the 
use of acquitted conduct as a basis for upward departure.
    Option 2 is derived from a ``compromise'' proposal suggested 
several years ago by the Commission's Practitioners' Advisory Group. It 
excludes acquitted conduct from consideration in determining the 
guideline range unless such conduct is established by the ``clear and 
convincing'' standard, rather than the less exacting ``preponderance of 
the evidence'' standard generally applicable to the determination of 
relevant conduct.
    Option 3 expressly provides what currently is arguably implicit in 
the Relevant Conduct guideline: that acquitted conduct should be 
evaluated using the same standards as any other form of unconvicted 
conduct and included in determining the guideline range if those 
standards are met. However, the amended commentary invites a 
discretionary downward departure to exclude such conduct if the use of 
that conduct to enhance the sentence raises substantial concerns of 
fundamental fairness. It also states what should be the obvious 
appropriate floor for such a downward departure.
    Proposed Amendment: [Option 1A: Section 1B1.3 is amended by 
inserting the following new subsection:
    ``(c) Acquitted conduct, i.e., conduct necessarily rejected by the 
trier of fact in finding the defendant not guilty of a charge, shall 
not be considered relevant conduct under this section unless it is 
independently established by evidence not admitted at trial.''.
    The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is 
amended by renumbering Note 10 as Note 11 and by inserting the 
following as new Note 10:
    ``10. Subsection (c) provides that conduct (i.e., acts and 
omissions) of

[[Page 162]]

which the defendant has been acquitted after trial ordinarily shall not 
be considered in determining the guideline range. In applying this 
provision, the court should be mindful that evidence not admissible at 
trial properly may be considered at sentencing and that application of 
the guidelines often may involve determinations somewhat different from 
those necessary for conviction of an offense. For example, the factors 
necessary to establish the enhancement in Sec. 2D1.1(b)(1) for 
possession of a weapon in a controlled substance offense are different 
from the elements necessary to find a defendant guilty of using or 
carrying a firearm in connection with that offense, in violation of 18 
U.S.C. Sec. 924(c); therefore, an acquittal of that offense would not 
necessarily foreclose the application of the weapon enhancement. 
Moreover, even if the defendant is acquitted of a charge under 18 
U.S.C. Sec. 924(c), the weapon enhancement in Sec. 2D1.1(b)(1) may 
apply if, for example, another person possessed a weapon as part of 
jointly undertaken criminal activity with the defendant and the 
possession of the weapon was reasonably foreseeable.''.]
    [Option 1B: Section 1B1.3 is amended by inserting the following new 
subsection:
    ``(c) Acquitted conduct, i.e., conduct necessarily rejected by the 
trier of fact in finding the defendant not guilty of a charge, shall 
not be considered relevant conduct under this section.''.
    The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is 
amended by renumbering Note 10 as Note 11 and by inserting the 
following as new Note 10:
    ``10. Subsection (c) provides that conduct (i.e., acts and 
omissions) of which the defendant has been acquitted after trial shall 
not be considered in determining the guideline range. In applying this 
provision, the court should be mindful that application of the 
guidelines often may involve determinations somewhat different from 
those necessary for conviction of an offense. For example, the factors 
necessary to establish the enhancement in Sec. 2D1.1(b)(1) for 
possession of a weapon in a controlled substance offense are different 
from the elements necessary to find a defendant guilty of using or 
carrying a firearm in connection with that offense, in violation of 18 
U.S.C. Sec. 924(c); therefore, an acquittal of that offense would not 
necessarily foreclose the application of the weapon enhancement.
    Moreover, even if the defendant is acquitted of a charge under 18 
U.S.C. Sec. 924(c), the weapon enhancement in Sec. 2D1.1(b)(1) may 
apply if, for example, another person possessed a weapon as part of 
jointly undertaken criminal activity with the defendant and the 
possession of the weapon was reasonably foreseeable. Although acquitted 
conduct may not be used in determining the guideline range, such 
conduct may provide a basis for an upward departure.''.]
    [Option 2
    Section 1B1.3 is amended by inserting the following new subsection:
    ``(c) Acquitted conduct, i.e., conduct necessarily rejected by the 
trier of fact in finding the defendant not guilty of a charge, shall 
not be considered relevant conduct under this section unless such 
conduct is established by clear and convincing evidence.''.
    The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is 
amended by renumbering Note 10 as Note 11 and by inserting the 
following as new Note 10:
    ``10. Subsection (c) provides that conduct (i.e., acts and 
omissions) of which the defendant has been acquitted after trial shall 
not be considered in determining the guideline range unless, 
considering the evidence admitted at trial and any additional evidence 
presented at sentencing, such conduct is established by clear and 
convincing proof.
    In determining whether conduct necessarily was rejected by an 
acquittal, the court should be mindful that application of the 
guidelines often may involve determinations different from those 
necessary for conviction of an offense. For example, the factors 
necessary to establish the enhancement in Sec. 2D1.1(b)(1) for 
possession of a weapon in a controlled substance offense are different 
from the elements necessary to find a defendant guilty of using or 
carrying a firearm in connection with that offense, in violation of 18 
U.S.C. Sec. 924(c); therefore, an acquittal of that offense would not 
necessarily foreclose the application of the weapon enhancement. 
Moreover, even if the defendant is acquitted of a charge under 18 
U.S.C. Sec. 924(c), the weapon enhancement in Sec. 2D1.1(b)(1) may 
apply if, for example, another person possessed a weapon as part of 
jointly undertaken criminal activity with the defendant and the 
possession of the weapon was reasonably foreseeable.''.]
    [Option 3
    The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is 
amended by renumbering Note 10 as Note 11 and by inserting the 
following note as new Note 10:
    ``10. Acquitted conduct, i.e., conduct necessarily rejected by the 
trier of fact in finding the defendant not guilty of a charge, shall be 
considered under this section if it otherwise qualifies as relevant 
conduct within the meaning of this section. However, if the court 
determines that, considering the totality of circumstances, the use of 
such conduct as a sentencing enhancement raises substantial concerns of 
fundamental fairness, a downward departure may be considered. Such a 
downward departure should not result, in the absence of other 
appropriate factors, in a sentence lower than the minimum sentence in 
the guideline range that would apply if such conduct were not 
considered.''.]

Section 1B1.5  Interpretation of References to Other Offense Guidelines

    10. Synopsis of Proposed Amendment: This amendment simplifies the 
operation of Chapter Two cross references in two ways: (1) by amending 
Sec. 1B1.5 (Interpretation of References to Other Offense Guidelines) 
to provide that only Chapter Two offense levels (not Chapter Two 
offense levels and Chapter Three adjustments) must be considered in 
determining whether a cross reference will result in a greater offense 
level than that provided in the Chapter Two guideline that contains the 
cross reference provision; and, (2) by amending Sec. 2X1.1 to replace 
the three-level reduction for certain offenses involving attempts, 
solicitation and, conspiracy with a downward departure provision (see 
accompanying memorandum). This amendment also corrects a technical 
error in Application Note 1 of Sec. 1B1.5.
    (1) Amendment of Sec. 1B1.5--Approximately 32 guideline subsections 
involving numerous cross references contain a requirement that the 
cross reference applies only if it results in the greater offense 
level. Currently, to determine the ``greater offense level,'' a 
comparison is required taking into account both the Chapter Two offense 
levels and any applicable Chapter Three adjustments. The inclusion of 
the Chapter Three adjustments in the comparison significantly increases 
the complexity of this task.
    This amendment simplifies the guidelines by restricting the 
comparison to the Chapter Two offense levels, unless a different 
procedure is expressly specified. The amendment, together with existing 
guideline language, provides a different procedure with respect to 
Secs. 2C1.1, 2C1.7, 2E1.1, 2E1.2 because they are the only four offense 
guidelines in which the inclusion of Chapter Three adjustments in the 
comparison is likely to make a difference. Although it is possible that 
there may be a difference under some

[[Page 163]]

other guideline section under some unusual circumstance, such 
differences will occur extremely rarely, if at all.
    Sections 2E1.1 and 2E1.2 currently expressly provide for a 
comparison (of the offense level applicable to the underlying activity 
and the alternative base offense level) including Chapter Three 
adjustments. There may be cases, for example, in which abuse of a 
position of trust is accounted for in the offense level applicable to 
the underlying racketeering activity. If Chapter Three adjustments 
(including Sec. 3B1.3 (Abuse of Position of Trust or Use of Special 
Skill)) are not included in the comparison, then abuse of a position of 
trust would be taken into account only in the offense level applicable 
to the underlying activity and not with respect to the alternative base 
offense level.
    Likewise, Secs. 2C1.1 and 2C1.7 currently do not expressly provide 
for a comparison including Chapter Three adjustments, although under 
current Sec. 1B1.5 such a comparison is called for. Cases under 
Secs. 2C1.1 and 2C1.7 would have a different result using a Chapter Two 
comparison versus a Chapter Two and Three comparison only where the 
Chapter Two offense level from Sec. 2C1.1 or 2C1.7 was the same as that 
for the underlying offense, and a 2-level adjustment from Sec. 3B1.3 
would apply to the underlying offense (an adjustment from Sec. 3B1.3 
does not apply to an offense level from Sec. 2C1.1 or Sec. 2C1.7). In 
such case, a 2-level difference would result: that conduct would 
already be taken into account under Secs. 2C1.1 and 2C1.7 but would not 
be taken into account in the comparison of the offense level from the 
underlying offense because the Chapter Three adjustment would not be 
included. However, such cases should occur relatively infrequently. In 
FY 1995, there were 220 cases sentenced under Sec. 2C1.1 altogether and 
26 cases sentenced under 2C1.7.
    To address the cases described above, this amendment requires, as 
an express exception to the general rule provided for in the amendment, 
that the comparisons made in Secs. 2C1.1, 2C1.7, 2E1.1, and 2E1.2 
include Chapter Three adjustments. Application notes are added to 
Secs. 2C1.1 and 2C1.7 expressly requiring a Chapter Three comparison 
(and the application notes in Secs. 2E1.1 and 2E1.2 that require the 
same are retained), without any substantive change.
    (2) Amendment of Sec. 2X1.1--This amendment also proposes deletion 
of the three-level reduction under Sec. 2X1.1(b) (1), (2), or (3), for 
attempts, conspiracies, or solicitations not covered by a specific 
offense guideline, in which the defendant has not completed all the 
acts necessary for the substantive offense and was not ``about to 
complete all such acts but for the apprehension or interruption by some 
similar event beyond the defendant's control.'' In place of the three-
level reduction, this amendment provides for the possibility of a 
downward departure under such circumstances. The arguments for 
eliminating the provisions are: (1) A large number of cases that go to 
Sec. 2X1.1 theoretically are required to be considered for the 
reduction, but only a small number qualify for it; (2) on its face the 
provision should be expected to apply rarely; and (3) the concerns 
manifested in the provisions can be dealt with adequately through 
departure. On the other hand, if the three-level reduction is replaced 
by a departure provision, in the rare case when the requirements for a 
reduction under subsection (b) are met, the defendant will not have a 
right to the reduction but must rely on the sentencing judge's exercise 
of the discretion to depart.
    In FY 1995 there were 1,568 cases in which the highest guideline 
applied was Sec. 2X1.1(a). Of these, 33 (or 2%) received the three-
level reduction under subsection (b) (17 for attempt, 13 for 
conspiracy, and 3 for solicitation). The affirmance rate of appeals of 
these findings has been very high (90.5% in FY 1995, 85% in FY 1994, 
and 94.4% in FY 1993).
    Proposed Amendment: Section Sec. 1B1.5(d) is amended by deleting 
``final offense level (i.e., the greater offense level taking into 
account the Chapter Two offense level and any applicable Chapter Three 
adjustments)'' and inserting in lieu thereof ``Chapter Two offense 
level, except as otherwise expressly provided''.
    The Commentary to Sec. 1B1.5 captioned ``Application Notes'' is 
amended in Note 1 by deleting ``, (2),'' and inserting in lieu thereof 
``and'' immediately after ``Sec. 2D1.2(a)(1)'' and by deleting ``and 
Sec. 2H1.1(a)(1),''.
    The Commentary to Sec. 1B1.5 captioned ``Application Notes'' is 
amended in Note 2 by deleting in the second sentence ``greater final''; 
by deleting ``(i.e., the greater offense level''; by deleting ``both'' 
and inserting in lieu thereof ``only''; and by deleting ``and any 
applicable Chapter Three adjustments).''
    The Commentary to Sec. 1B1.5 captioned ``Application Notes'' is 
amended in Note 2 by deleting the second and third sentences and 
inserting the following in lieu thereof:
    ``, unless the offense guideline expressly provides for 
consideration of both the Chapter Two offense level and applicable 
Chapter Three adjustments. For situations in which a comparison 
involving both Chapters Two and Three is necessary, see the Commentary 
to Secs. 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe); 
2C1.7 (Fraud Involving Deprivation of the Intangible Right to the 
Honest Services of Public Officials); 2E1.1 (Unlawful Conduct Relating 
to Racketeer Influenced and Corrupt Organizations); and 2E1.2 
(Interstate or Foreign Travel or Transportation in Aid of Racketeering 
Enterprise).''.
    The Commentary to Sec. 2C1.1 captioned ``Application Notes'' is 
amended by inserting the following additional note:
    7. For the purposes of determining whether to apply the cross 
references in this section, the ``resulting offense level'' means the 
greater final offense level (i.e., the offense level determined by 
taking into account both the Chapter Two offense level and any 
applicable adjustments from Chapter Three, Parts A-D).''.
    The Commentary to Sec. 2C1.7 captioned ``Application Notes'' is 
amended by inserting the following additional note:
    ``6. For the purposes of determining whether to apply the cross 
references in this section, the ``resulting offense level'' means the 
greater final offense level (i.e., the offense level determined by 
taking into account both the Chapter Two offense level and any 
applicable adjustments from Chapter Three, Parts A-D).''.
    Section Sec. 2X1.1 is amended by deleting subsection (b) in its 
entirety and redesignating subsection (c) as subsection (b).
    The Commentary to Sec. 2X1.1 captioned ``Application Notes'' is 
amended by deleting Note 4 in its entirety and inserting the following 
in lieu thereof:
    ``4. This guideline applies to attempts, solicitations, or 
conspiracies that are not covered by a specific offense guideline. In 
cases to which this guideline applies, a downward departure of up to 
three levels may be warranted if the defendant is arrested well before 
the defendant or any co-conspirator has completed the acts necessary 
for the substantive offense. A downward departure would not be 
appropriate under this section in cases in which the defendant or a co-
conspirator completed all the acts such person believed necessary for 
successful completion of the substantive offense or the circumstances 
demonstrate that the person was about to complete all such acts but for 
apprehension or interruption by some similar event

[[Page 164]]

beyond the person's control. A downward departure also would not be 
appropriate in cases involving solicitation if the statute treats 
solicitation of the substantive offense identically with the 
substantive offense, i.e., the offense level in such cases should be 
the same as that for the substantive offense.''.
    The Commentary to Sec. 2X1.1 captioned ``Background'' is deleted in 
its entirety.
    The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is 
amended by deleting Note 7 in its entirety.
    The Commentary to Sec. 2A4.1 captioned ``Application Notes'' is 
amended in Note 5 by deleting ``, subject to a possible 3-level 
reduction under Sec. 2X1.1(b))''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended by deleting Note 9 in its entirety.

Section 1B1.10 Retroactivity of Amended Guideline Range

    11. Synopsis of Proposed Amendment: This amendment responds to 
recent litigation, including a circuit conflict and inquiries regarding 
the operation of Sec. 1B1.10 and related statutory provisions.
    The amendment clarifies Commission intent that the designation of 
an amendment for retroactive application to previously sentenced, 
imprisoned defendants authorizes only a reduction in the term of 
imprisonment pursuant to 18 U.S.C. Sec. 3582(c)(2) (which, in turn, 
speaks only to modification of a term of imprisonment) and does not 
open any other components of the sentence (e.g., the term of supervised 
release) to modification. The amendment further clarifies that the 
amount of reduction in the prison sentence, subject to the constraints 
of the amended, reduced guideline range and the amount of time 
remaining to be served, is within the sound discretion of the court.
    Proposed Amendment: Section 1B1.10 is amended in the title by 
deleting ``Retroactivity'' and inserting in lieu thereof ``Reduction in 
Term of Imprisonment as a Result''.
    Section 1B1.10(b) is amended by deleting ``sentence'' the first 
time it appears and inserting in lieu thereof ``the term of 
imprisonment'', by deleting ``sentence'' the next time it appears and 
inserting in lieu thereof ``term of imprisonment'', and by inserting 
``, except that in no event may the reduced term of imprisonment be 
less than the term of imprisonment the defendant has already served'' 
immediately before the period at the end of the sentence.
    The Commentary to Sec. 1B1.10 captioned ``Application Notes'' is 
amended by inserting the following additional note at the end:
    ``3. The determination of whether to grant a reduction in a term of 
imprisonment under 18 U.S.C. Sec. 3582(c)(2) and the amount of such 
reduction are within the sound discretion of the court, subject to the 
limitations in subsection (b).''.
    The Commentary to Sec. 1B1.10 captioned ``Background'' is amended 
in the third paragraph by inserting ``to determine an amended guideline 
range under subsection (b)'' immediately before the period at the end 
of the sentence; and by inserting the adding at the end the following 
new paragraph:
    ``The listing of an amendment in subsection (c) reflects policy 
determinations by the Commission that a reduced guideline range is 
sufficient to achieve the purposes of sentencing and that, in the sound 
discretion of the court, a reduction in the term of imprisonment may be 
appropriate for previously sentenced, qualified defendants. The 
authorization of such a discretionary reduction does not otherwise 
affect the lawfulness of a previously imposed sentence, does not 
authorize a reduction in any other component of the sentence, and does 
not entitle a defendant to a reduced term of imprisonment as a matter 
of right.''.

Section 2B1.1. Larceny, Embezzlement, and Other Forms of Theft; 
Receiving, Transporting, Transmitting, or Possessing Stolen Property

    12. Synopsis of Proposed Amendment: (a) Source and Purpose--This 
amendment addresses a significant interpretive problem involving a 
specific offense characteristic in the Theft (Sec. 2B1.1) and Fraud 
(Sec. 2F1.1) guidelines. The problem occurs in connection with the 
specific offense characteristic under Sec. 2B1.1(b)(6)(B) and 
Sec. 2F1.1(b)(6)(B), which provides an enhancement of four levels 
(approximate 50 percent increase) and a floor offense level of 24 (51-
63 months for a first offender), if the offense ``affected a financial 
institution and the defendant derived more than $1,000,000 in gross 
receipts from the offense.'' The proper interpretation of this language 
has been the subject of a number of hotline calls and some litigation 
(although no circuit conflict has yet resulted). Staff review of the 
Theft and Fraud guidelines has raised this matter for possible 
Commission attention.
    (b) Number of affected cases--FY '95 monitoring data are unable to 
distinguish cases that received the similar enhancement for 
substantially jeopardizing the safety and soundness of a financial 
institution (under Sec. 2B1.1(b)(6)(A) and Sec. 2F1.1(b)(6)(A)) from 
this particular enhancement under paragraph (B). One or the other 
enhancement was applied in 37 (0.6%) of 6,019 fraud cases and 28 (0.9%) 
of 3,142 theft (Sec. 2B1.1) cases. This amendment could decrease the 
frequency with which this particular enhancement is given. The 
amendment proposes to delete the four-level enhancement in paragraph 
(B), while retaining the minimum offense level of 24 (because that is 
all the directive requires). This could affect as many as 27 of the 
fraud cases (i.e., 27 of the fraud cases received a 4-level enhancement 
while 10 were affected by the floor of 24) and 2 of the theft cases 
(i.e., 2 of the 28 cases received a 4-level enhancement while 26 were 
affected by the floor of 24).
    (c) Scope of Amendment--This amendment would continue to apply the 
enhancement to a broader spectrum of cases than minimally required 
under the congressional directive. However, the commentary would state 
that the offense must be perpetrated against one or more financial 
institutions and the defendant's $1 million must be derived entirely 
from one or more financial institutions. The definition for ``gross 
receipts'' in the commentary would be amended to clarify that ``gross 
receipts from the offense'' includes property under the control of, or 
in the custody of, the financial institution for a second party, e.g., 
a depositor. The Background Commentary would also be amended to reflect 
the Commission's intent to implement the congressional directive more 
broadly.
    Proposed Amendment: Section Sec. 2B1.1(b)(6) is amended by deleting 
``(A)''; by deleting ``; or'' immediately following ``institution'' and 
inserting in lieu thereof a ``,'' ; and by deleting subsection (B) in 
its entirety.
    Section Sec. 2B1.1 is amended by inserting the following additional 
subsection:
    ``(7) If (A) obtaining or retaining the gross receipts of one or 
more financial institutions was an object of the offense, (B) the 
defendant derived more than $1,000,000 in gross receipts from such 
institutions, and (C) the offense level as determined above is less 
than level 24, increase to level 24.''.
    The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is 
amended in Note 11 by inserting at the beginning the following:
    ``For purposes of subsection (b)(7), `gross receipts' means any 
moneys, funds, credits, assets, securities, or other real or personal 
property, whether tangible or intangible, owned by, or

[[Page 165]]

under the custody or control of, a financial institution, that are 
obtained directly or indirectly as a result of such offense. See 18 
U.S.C. Secs. 982(a)(4), 1344.''.
    The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is 
amended in Note 11 by deleting in the second sentence (formerly the 
first sentence) ``from the offense,''; by deleting ``(6)(B)'' 
immediately following ``(b)''; and by deleting ``generally'' 
immediately following ``(7),''.
    The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is 
amended in Note 11 by deleting the third sentence (formerly the second 
sentence) in its entirety.
    The Commentary to Sec. 2B1.1 captioned ``Background'' is amended in 
the sixth paragraph by deleting ``Subsection'' and inserting in lieu 
thereof ``Subsections''; by deleting ``(A)'' immediately following 
``(b)(6)'' and inserting in lieu thereof ``and (b)(7)''; by deleting 
``implements'' and inserting in lieu thereof ``implement''; by deleting 
``instruction'' and inserting in lieu thereof ``instructions''; and by 
inserting ``and section 2507 of Public Law 101-647, respectively'' 
immediately following ``101-73''.
    Section 2F1.1(b)(6) is amended by deleting ``(A)''; by deleting ``; 
or'' immediately following ``institution'' and inserting in lieu 
thereof a ``,'' ; and by deleting (B) in its entirety.
    Section 2F1.1(b) is amended by inserting the following additional 
subsection:
    ``(7) If (A) obtaining or retaining the gross receipts of one or 
more financial institutions was an object of the offense, (B) the 
defendant derived more than $1,000,000 in gross receipts from such 
institutions, and (C) the offense level as determined above is less 
than level 24, increase to level 24.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 16 by deleting in the first sentence ``from the 
offense,''; by deleting ``(6)(B)'' immediately following ``(b)''; and 
by deleting ``generally'' immediately following ``(7),''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 16 by deleting the second sentence in its entirety.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 16 by inserting at the beginning the following:
    ``For purposes of subsection (b)(7), `gross receipts' means any 
moneys, funds, credits, assets, securities, or other real or personal 
property, whether tangible or intangible, owned by, or under the 
custody or control of, a financial institution, that are obtained 
directly or indirectly as a result of such offense. See 18 U.S.C. 
Secs. 982(a)(4), 1344.''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in 
the seventh paragraph by deleting ``Subsection'' and inserting in lieu 
thereof ``Subsections'';
    By deleting ``(A)'' immediately following ``(b)(6)'' and inserting 
in lieu thereof ``and (b)(7)'';
    By deleting ``implements'' and inserting in lieu thereof 
``implement'';
    By deleting ``instruction'' and inserting in lieu thereof 
``instructions'';
    And by inserting ``and section 2507 of Public Law 101-647, 
respectively'' immediately following ``101-73''.

Section 5A1.1  Sentencing Table

    13. Synopsis of Proposed Amendment: This is a two-part amendment. 
First, this amendment incorporates the Sentencing Table into a new 
guideline at Sec. 5A1.1, in response to questions about the legal 
status of the Sentencing Table. By incorporating the Sentencing Table 
into a guideline, this amendment also uses a construct for the 
Sentencing Table that is consistent with the construct used for other 
tables in the Guidelines Manual, such as the Drug Quantity Table in 
Sec. 2D1.1.
    Second, this amendment addresses an arguably unwarranted ``cliff'' 
in the Sentencing Table between offense levels 42 and 43. Under the 
current table, offense level 42 prescribes guideline ranges of 360 
months to life imprisonment for each criminal history category. Offense 
level 43, in comparison, prescribes a guideline sentence of life for 
each criminal history category.
    There is evidence that the Commission initially intended to 
preserve level 43 and its resulting life sentence requirement for the 
most egregious law violators; i.e., those convicted of first degree 
murder, including felony murder, and treason. Note, for example, the 
wording of Application Note 1 to Sec. 2A1.1: ``The Commission has 
concluded that in the absence of capital punishment life imprisonment 
is the appropriate punishment for premeditated killing.'' However, in 
providing for a sentencing table with a continuous series of offense 
levels, the Commission actually made it possible for those most serious 
categories of criminals to be subject to offense levels less than 43 
(and, hence, to guideline ranges that do not require a life sentence), 
if mitigating guideline adjustments apply. Conversely, the continuous 
nature of the Sentencing Table also can result in defendants who commit 
less inherently serious crimes; i.e., those carrying base offense 
levels less than 43, receiving an offense level of 43 (and, hence, a 
required life sentence) as a result of applicable aggravating guideline 
adjustments (e.g., aggravating role, weapon enhancement). Prior to a 
1994 amendment reducing the quantity-based offense level in the drug 
table from 42 to 38, this latter situation occurred more frequently 
than it occurs now.
    Nevertheless, in those infrequent cases, when a defendant whose 
base offense level is less than 43 becomes subject to guideline 
enhancements that result in a final, adjusted offense level of 43 or 
more, a ``mandatory'' guideline sentence of life imprisonment may not 
be warranted. In the last several years, a number of judges have 
written or called the Commission to express concern about what they see 
as an anomalous, unwarranted ``cliff'' between level 42 (range of 360 
months to life) and level 43 (life), particularly in the case of a very 
young defendant who has a remaining life expectancy exceeding 30 years. 
Those who have contacted the Commission about this sentencing table 
phenomenon have pointed out that, for younger defendants, there may be 
a definite qualitative as well as a quantitative difference between a 
sentence of 30 or more years and a non-parolable sentence of life. In 
some of these cases, the applicability of a guideline enhancement of 
one or two offense levels can turn a very lengthy, deserved sentence 
into a life sentence that may not be warranted and, according to some 
who have commented, may even raise Eighth Amendment concerns.
    The second part of this amendment addresses this concern by making 
level 42 the offense level upper limit in the sentencing table, unless 
the defendant was subject to an offense level of 43 as a result of the 
application of Sec. 2A1.1 (First Degree Murder), Sec. 2M1.1 (Treason), 
or other guideline provision that elevates the offense level to level 
43 because of the death of a person. In such cases, level 43 and its 
associated life sentence would continue to apply. This approach 
preserves level 43 for the most egregious cases while providing a range 
of 360 months to life for all other cases that reach level 42 through 
guideline enhancements.
    This amendment can be expected to affect a relatively small number 
(perhaps 30-40) of cases, based on FY 1995 monitoring data. In FY 1995, 
80 defendants received a final offense level of 43. Of these, 28 would 
not be affected because level 43 was received via Sec. 2A1.1 (First 
Degree Murder); (there

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were no Sec. 2M1.1 (Treason) cases.) Of the 52 remaining defendants at 
final offense level 43, 34 received a life sentence. The amendment 
could be expected to impact approximately this number of defendants, 
some of whom might still receive a life sentence because the judge 
elected to impose it.
    Proposed Amendment: The Commentary to Sec. 2A1.1 captioned 
``Application Notes'' is amended in Note 1 by deleting ``life 
imprisonment is the appropriate punishment for premeditated killing'' 
and inserting in lieu thereof ``a defendant who commits premeditated 
murder should be sentenced at the highest offense level under the 
Sentencing Table (subject to any applicable adjustments from Chapter 
Three)'' ; and by deleting the second, third, and fourth sentences.
    Chapter Five--Determining the Sentence is amended in Part A--
Sentencing Table by deleting ``The Sentencing Table used to determine 
the guideline range follows:'' and inserting in lieu thereof:
``Sec. 5A1.1  Sentencing Table
    (a) The Sentencing Table used to determined the guideline range is 
set forth in subsection (b).''.
    Chapter Five--Determining the Sentence is amended in Part A--
Sentencing Table by inserting ``(b)'' in the title of the Sentencing 
Table.
    The Commentary to Sentencing Table is amended in Note 2 by deleting 
``An offense level of more than 43 is to be treated as an offense level 
of 43.'' and inserting the following in lieu thereof:
    ``A total offense level of more than 42 is to be treated as an 
offense level of 42. However, if the final offense level is 43 or more 
as a result of the application of Sec. 2A1.1 (First Degree Murder), 
Sec. 2M1.1 (Treason), or another guideline provision (including a cross 
reference to Sec. 2A1.1) that increases the offense level to level 43 
because the offense involved first degree murder or resulted in death, 
the offense level is to be treated as an offense level of 43.''.

Section 2B3.1  Robbery

    14. Synopsis of Proposed Amendment: (a) Source and Purpose--This 
amendment addresses a split among the circuit courts regarding the 
application of the ``express threat of death'' enhancement in 
Sec. 2B3.1 (Robbery).
    The majority, relying on the Commission's discussion in Application 
Note 6, holds that the enhancement applies when the combination of the 
defendant's actions and words would instill in a reasonable person in 
the position of the immediate victim (e.g., a bank teller) a greater 
amount of fear than necessary to commit the bank robbery. Pursuant to 
this approach, the enhancement applies even when the defendant's 
statement does not indicate distinctly an intent to kill the victim; it 
is sufficient that the victim infers from the defendant's conduct that 
a threat of death was made. See United States v. Robinson, 86 F.3d 
1197, 1202 (D.C. Cir. 1996) (enhancement applies if (1) a reasonable 
person in the position of the immediate victim would very likely 
believe the defendant made a threat and the threat was to kill; and (2) 
the victim likely thought his life was in peril); United States v. 
Murray, 65 F.3d 1161, 1167 (4th Cir. 1995) (``any combination of 
statements, gestures, or actions that would put an ordinary victim in 
reasonable fear for his or her life is an express threat of death''); 
United States v. France, 57 F.3d 865, 868 (9th Cir. 1995) (``[a]n 
express threat need not be specific in order to instill the requisite 
level of fear in a reasonable person''); United States v. Hunn, 24 F.3d 
994 (7th Cir. 1994) (combination of defendant's note and his gesture 
that he was pointing a gun through his pocket at the teller would be 
understood by a reasonable victim as a death threat); United States v. 
Bell, 12 F.3d 139 (8th Cir. 1993) (upholding enhancement based on 
demand note's statement ``Make any sudden moves alert anyone I'll pull 
the pistol in this purse and the shooting will start!''); United States 
v. Smith, 973 F.2d 1374, 1378 (8th Cir. 1992) (combination of 
threatening statements to teller and gesture that defendant had a gun 
instilled greater fear than necessary to commit the robbery).
    The minority holds that only what the defendant does or says, not 
what the victim infers, should be used to assess whether an express 
threat of death was made within the meaning of the robbery guideline. 
United States v. Alexander, 88 F.3d 427, 431 (6th Cir. 1996) (``a 
defendant's statement must distinctly and directly indicate that the 
defendant intends to kill or otherwise cause the death of the 
victim''); United States v. Tuck, 964 F.2d 1079 (11th Cir. 1992) 
(same); see also United States v. Hunn, 24 F.3d at 999-1000 
(Easterbrook, J., dissenting). The Sixth Circuit also held that the 
commentary examples and the Commission's underlying intent at 
Application Note 6 are not controlling because they are inconsistent 
with the plain meaning of ``express'' in Sec. 2B3.1(b)(2)(F). United 
States v. Alexander, 88 F.3d at 431 (referring to Stinson v. United 
States, 508 U.S. 36 (1993)).
    (b) Policy Considerations--The major policy consideration is how 
strictly the Commission intends for the threat of death enhancement to 
apply; i.e., must the defendant explicitly threaten death in order for 
the enhancement to apply.
    (c) Number of Affected Cases--In FY 1995, the enhancement is 
applied in 169 out of 1,488 cases (or 11.4% of the cases) sentenced 
under the robbery guideline.
    (d) Amendment Options--This amendment adopts the majority view and 
clarifies the Commission's intent to enhance offense levels for 
defendants whose intimidation of the victim exceeds that amount 
necessary to constitute an element of a robbery offense. The amendment 
deletes the reference to ``express'' in Sec. 2B3.1(b)(2)(F) and 
provides for a two-level enhancement ``if a threat of death was made''.
    Proposed Amendment: Section Sec. 2B3.1(b)(2)(F) is amended by 
deleting ``an express'' and inserting in lieu thereof ``a''.
    Option 1:
    The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is 
amended in Note 6 by deleting ``An express'' and inserting in lieu 
thereof ``A '' ``;
    By deleting the second sentence in its entirety and inserting in 
lieu thereof ``Accordingly, the defendant does not have to state 
expressly his intent to kill the victim in order for the enhancement to 
apply.'';
    And by deleting in the third sentence ``the underlying'' and 
inserting in lieu thereof ``this''.
    Option 2:
    The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is 
amended in Note 6 by deleting ``An express'' and inserting in lieu 
thereof ``A '' ``;
    By deleting the second sentence in its entirety and inserting in 
lieu thereof ``Accordingly, the defendant does not have to state 
expressly his intent to kill the victim in order for the enhancement to 
apply.'';
    By deleting in the third sentence ``the underlying'' and inserting 
in lieu thereof ``this''; and by deleting ``significantly greater fear 
than that necessary to constitute an element of the offense of 
robbery'' and inserting in lieu thereof ``a fear of death''.
    15. Synopsis of Proposed Amendment: This amendment addresses the 
Carjacking Correction Act of 1996, Pub.L. 104-217; 110 Stat. 3020. 
Section 2 of that Act amends 18 U.S.C. Sec. 2119(2), which (A) makes it 
unlawful to take a motor vehicle by force and violence or by 
intimidation, with intent to cause death or serious bodily harm, and 
(B) provides for a term of

[[Page 167]]

imprisonment of not more than 25 years if serious bodily injury 
results. As amended by the Carjacking Correction Act of 1996, 18 U.S.C. 
Sec. 2119(2) includes aggravated sexual abuse under 18 U.S.C. Sec. 2241 
and sexual abuse under 18 U.S.C. Sec. 2242 within the meaning of 
``serious bodily injury''. Therefore, a defendant will be subject to 
the 25-year statutory maximum under 18 U.S.C. Sec. 2119(2) if the 
defendant commits a carjacking and rapes the carjacking victim during 
the carjacking.
    In addition, this amendment amends Sec. 2B3.1(b)(1) to provide 
cumulative enhancements if the offense involved bank robbery and 
carjacking. Currently, Sec. 2B3.1 provides a 2-level enhancement either 
for bank robbery or for carjacking; it does not provide separate 
enhancements for those factors.
    Two options are presented. Option 1 is a fairly narrow response to 
the Act. It amends Application Note 1 of Sec. 2B3.1 (Robbery, 
Extortion, and Blackmail), the guideline which covers carjacking 
offenses under 18 U.S.C. Sec. 2119 (and only that guideline) to provide 
that ``serious bodily injury'' includes aggravated sexual abuse under 
18 U.S.C. Sec. 2241 and sexual abuse under 18 U.S.C. Sec. 2242.
    Option 2 is a broader response to the Act. It expands the 
definition of ``serious bodily injury'' under Sec. 1B1.1. Option 2 
makes this broader definition generally applicable to Chapter Two 
offense guidelines which contain a ``serious bodily injury'' 
enhancement. The sexual abuse guideline, Sec. 2A3.1, in turn is amended 
to make clear that, for purposes of that guideline, the ``serious 
bodily injury'' enhancement covers conduct other than aggravated sexual 
abuse and sexual abuse, which are inherent in the conduct covered by 
that guideline.
    Option 2 also clarifies the guideline definition of serious bodily 
injury by inserting the word ``protracted'' immediately preceding the 
word ``impairment''. Statutes defining serious bodily injury 
consistently use the term ``protracted'' before ``impairment'' (e.g., 
18 U.S.C. Secs. 831, 1365, 1864; 21 U.S.C. Sec. 802). Without use of 
the term ``protracted'', even a temporary impairment such as a 
``sprained wrist'' would fall within the definition of serious bodily 
injury, as would the throwing of sand or pepper in someone's face to 
temporarily impair vision. Finally, Option 2 removes two sentences of 
commentary that are unhelpful.
[Option 1
    Section 2B3.1(b)(1) is amended by deleting ``(A)'' immediately 
following ``If'', and by deleting ``or (B) the offense involved 
carjacking,''.
    Section 2B3.1 is amended by renumbering subdivisions (5) and (6) as 
subdivisions (6) and (7) respectively and inserting the following as a 
new subdivision (5):
    ``(5) If the offense involved carjacking, increase by 2 levels.''.
    Section 2B3.1 captioned ``Application Notes'' is amended in Note 1 
by inserting ``For purposes of this guideline--'' immediately before 
``Firearm,'' and inserting ``In addition, `serious bodily injury--' 
includes conduct constituting criminal sexual abuse under 18 U.S.C. 
Sec. 2241 or Sec. 2242 or any similar offense under state law.'' 
immediately after ``Instructions).''.
[Option 2
    The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is 
amended in Note 1(b) by deleting ``As used in the guidelines, the 
definition of this term is somewhat different than that used in various 
statutes.''.
    The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is 
amended in Note 1(j) by inserting ``protracted'' immediately before 
``impairment''; and by deleting ``As used in the guidelines, the 
definition of this term is somewhat different than that used in various 
statutes.'' and inserting in lieu thereof `` `Serious bodily injury' 
includes conduct constituting criminal sexual abuse under 18 U.S.C. 
Sec. 2241 or Sec. 2242 or any similar offense under state law.''.
    The Commentary to Sec. 2A3.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``For purposes of this guideline'' 
immediately before ```Permanent''; and by inserting the following as 
the last sentence:
    ``However, for purposes of this guideline, `serious bodily injury' 
means conduct other than criminal sexual abuse, which already is taken 
into account in the base offense level under subsection (a).''.
    The Commentary to Sec. 2A3.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting the following as the last paragraph:
    ``The means set forth in 18 U.S.C. Sec. 2241 (a) or (b)'' are: by 
using force against the victim; by threatening or placing the victim in 
fear that any person will be subject to death, serious bodily injury, 
or kidnapping; by rendering the victim unconscious; or by administering 
by force or threat of force, or without the knowledge or permission of 
the victim, a drug, intoxicant, or other similar substance and thereby 
substantially impairing the ability of the victim to appraise or 
control conduct. This provision would apply, for example, where any 
dangerous weapon was used, brandished, or displayed to intimidate the 
victim.''.
    The Commentary to Sec. 2A3.1 captioned ``Application Notes'' is 
amended by deleting Note 2 in its entirety; and by renumbering Notes 3-
7 as Notes 2-6 respectively.
    Section 2B3.1(b)(1) is amended by deleting ``(A)'' immediately 
after ``If''; by deleting ``or (B) the offense involved carjacking,'' 
immediately before ``increase''.
    Section 2B3.1(b) is amended by renumbering subdivisions (5) and (6) 
as subdivisions (6) and (7) respectively, and by inserting the 
following as a new subdivision (5):
    ``(5) If the offense involved carjacking, increase by 2 levels.''.

Section 2B5.1  Offenses Involving Counterfeit Bearer Obligations of the 
United States

    16. Synopsis of Proposed Amendment: This is a three-part amendment. 
First, this amendment addresses section 807(h) of the Antiterrorism and 
Effective Death Penalty Act of 1996. That section requires the 
Commission to amend the sentencing guidelines to provide an appropriate 
enhancement for a defendant convicted of an international 
counterfeiting offense under 18 U.S.C.Sec. 470. The amendment adds a 
specific offense characteristic in Sec. 2B5.1 (Offenses Involving 
Counterfeit Bearer Obligations of the United States) to provide a two-
level enhancement if the offense occurred outside the United States.
    Second, this amendment moves the coverage of offenses involving 
altered bearer instruments of the United States from Sec. 2F1.1 (Fraud 
and Deceit; Forgery; Offenses Involving Altered or Counterfeit 
Instruments Other than Counterfeit Bearer Obligations of the United 
States) to Sec. 2B5.1 (Offenses Involving Counterfeit Bearer 
Obligations of the United States). Currently, Sec. 2B5.1 covers 
counterfeit bearer obligations of the United States. Section 2F1.1 
covers altered bearer obligations of the United States. The offense 
level in Sec. 2B5.1 is one-level higher than sophisticated fraud (i.e., 
fraud and more than minimal planning) under Sec. 2F1.1 throughout the 
range of loss values. There are two reasons for moving offenses 
involving altered bearer instruments of the United States from 
Sec. 2F1.1 to Sec. 2B5.1: (A) theoretical consistency, and (B) 
simplicity of guideline operation.
    (A) Theoretical Consistency. The higher offense level for offenses 
involving counterfeit bearer obligations of the United States reflects 
the lower

[[Page 168]]

level of scrutiny realistically possible in transactions involving 
currency and the absence of any requirement that the person passing the 
currency produce identification. Under this rationale, however, altered 
bearer obligations of the United States seem to belong with counterfeit 
bearer obligation of the United States, rather than with other 
counterfeit or altered instruments.
    (B) Simplicity of Guideline Operation. As a practical matter, the 
distinction between an altered instrument and a counterfeit instrument 
is not always clear. For example, if a genuine one-dollar bill is 
bleached and a photocopy of a twenty-dollar bill made using the genuine 
note paper, is the resulting twenty-dollar bill a counterfeit bill or 
an altered bill? In one recent case, a defendant made photocopies of 
twenty-dollar bills, then cut out the presidential picture of genuine 
twenty-dollar bills and switched pictures (using the genuine picture 
with the photocopied bill and the photocopied picture with the 
otherwise genuine bill). Is the photocopied bill with the genuine 
presidential picture a counterfeit or an altered instrument? This 
amendment simplifies the guidelines by handling this conduct in the 
same offense guideline, thus avoiding any difference based upon such 
very fine distinctions.
    Third, this amendment clarifies the operation of Sec. 2B5.1 
(Offenses Involving Counterfeit Bearer Obligations of the United 
States) in two respects to address issues raised in litigation. It 
deletes a phrase in Application Note 3 concerning photocopying a note 
that could lead to the inappropriate conclusion that an enhancement 
from subsection (b)(2) does not apply even to sophisticated copying of 
notes. It also adds an application note to provide expressly that items 
clearly not intended for circulation are not counted under subsection 
(b)(1).
    Proposed Amendment: Section 2B5.1 is amended in the title by 
inserting ``or Altered'' immediately following ``Counterfeit''.
    Section 2B5.1(b) (1) and (b)(2) are both amended by inserting ``or 
altered'' immediately following ``counterfeit''.
    Section 2B5.1(b) is amended by inserting the following new 
subdivision at the end:
    ``(4) If the offense was committed outside the United States, 
increase by 2 levels.''.
    The Commentary to Sec. 2B5.1 captioned ``Statutory Provision'' is 
amended by deleting ``471'' and inserting in lieu thereof ``470''.
    The Commentary to Sec. 2B5.1 captioned ``Application Notes'' is 
amended by deleting Note 2, renumbering Note 1 as Note 2 and inserting 
the following as the new Note 1:
    ``1. For purposes of this guideline, ``United States'' means each 
of the fifty states, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, 
and American Samoa.'';
    In Note 2 (formerly Note 1) by inserting ``or altering'' 
immediately following ``counterfeiting'';
    By renumbering Note 3 as Note 4 and inserting the following as the 
new Note 3:
    ``3. For the purposes of subsection (b)(1), do not count items that 
clearly were not intended for circulation (e.g., items that are so 
defective that they are unlikely to be accepted even if subjected to 
only minimal scrutiny). However, partially completed items that would 
have been completed but for the discovery of the offense should be 
counted for purposes of such subsection.'';
    And in Note 4 (formerly Note 3) by deleting ``merely photocopy 
notes or otherwise''.
    The Commentary to Sec. 2B5.1 captioned ``Background'' is amended by 
inserting ``alters bearer obligations of the United States or'' 
immediately before ``produces''.
    Section 2F1.1 is amended in the title by inserting ``Altered or'' 
immediately following ``than''.

Section 2D1.6  Use of Communication Facility in Committing Drug Offense

    17. Synopsis of Proposed Amendment: This amendment clarifies the 
operation of Secs. 2D1.6 (Use of Communication Facility in Committing 
Drug Offense; Attempt or Conspiracy), 2E1.1 (Unlawful Conduct Relating 
to Racketeer Influenced and Corrupt Organizations), 2E1.2 (Interstate 
or Foreign Travel or Transportation in Aid of a Racketeering 
Enterprise), and 2E1.3 (Violent Crimes in Aid of Racketeering Activity) 
in a manner consistent with the operation of Sec. 1B1.2 (Applicable 
Guidelines) governing the selection of the offense guideline section. 
This amendment addresses a circuit conflict by specifying that the 
``underlying offense'', for purposes of these guidelines, is determined 
on the basis of the conduct of which the defendant was convicted. 
Compare United States v. McCall, 915 F.2d 811 (2d Cir. 1990) with 
United States v. Carrozza, 4 F.3d 70 (1st Cir. 1993). In addition, this 
amendment deletes an application note from Secs. 2E1.1, 2E1.2, and 
2E1.3 that is unnecessary and is not included in other sections of the 
Guidelines Manual.
    Proposed Amendment: The Commentary to Sec. 2D1.6 captioned 
``Application Notes'' is amended by deleting ``Note'' and inserting in 
lieu thereof ``Notes'', by renumbering Note 1 as Note 2, by inserting 
the following as new Note 1:
    ``1. `Offense level applicable to the underlying offense'' means 
the offense level determined by using the offense guideline applicable 
to the controlled substance offense that the defendant was convicted of 
using a communication facility to commit, cause, or facilitate.''.
    The Commentary to Sec. 2E1.1 captioned ``Application Notes'' is 
amended in Note 1 by deleting ``Where there is more than one underlying 
offense'' and inserting in lieu thereof ``The `offense level applicable 
to the underlying racketeering activity' under subsection (a)(2) means 
the offense level under the applicable offense guideline, as determined 
under the provisions of Sec. 1B1.2 (Applicable Guidelines)(i.e., on the 
basis of the conduct of which the defendant was convicted). In the case 
of more than one underlying offense (for this determination, apply the 
provisions of Application Note 5 of the Commentary to Sec. 1B1.2 as if 
in a conspiracy case)''; by inserting ``apply Chapter Three, Parts A, 
B, and C to subsection (a)(1), and'' immediately following ``level,'', 
by deleting ``both (a)(1) and'' and inserting in lieu thereof 
``subsection''; by deleting Note 3, and by renumbering the remaining 
notes accordingly.
    The Commentary to Sec. 2E1.2 captioned ``Application Notes'' is 
amended in Note 1 by deleting ``Where there is more than one underlying 
offense'' and inserting in lieu thereof ``The `offense level applicable 
to the underlying crime of violence or other unlawful activity' under 
subsection (a)(2) means the offense level under the applicable offense 
guideline, as determined under the provisions of Sec. 1B1.2 (Applicable 
Guidelines) (i.e., on the basis of the conduct of which the defendant 
was convicted). In the case of more than one underlying offense (for 
this determination, apply the provisions of Application Note 5 of the 
Commentary to Sec. 1B1.2 as if in a conspiracy case)'',
    The Commentary to Sec. 2E1.3 captioned ``Application Notes'' is 
amended by deleting ``Notes'' and inserting in lieu thereof ``Note''; 
in Note 1 by adding the following as the first sentence:
    ``The `offense level applicable to the underlying crime or 
racketeering activity'' under subsection (a)(2) means the offense level 
under the applicable offense guideline, as determined under the 
provisions of Sec. 1B1.2 (Applicable

[[Page 169]]

Guidelines)(i.e., on the basis of the conduct of which the defendant 
was convicted).'';
    And by deleting Note 2.

Fraud, Theft, and Tax Offenses

Chapter Two, Parts B, F, and T (Theft, Fraud, and Tax)

    18. Synopsis of Proposed Amendment: This amendment makes the 
following changes to guideline Secs. 2B1.1, 2F1.1, and 2T4.1: (1) 
Eliminates the more-than-minimal-planning enhancement in Secs. 2B1.1 
and 2F1.1 and other guidelines, and builds a corresponding increase 
into the loss tables, and creates a two-level enhancement like the one 
in Sec. 2T4.1 for offenses involving ``sophisticated means''; (2) 
increases the base offense level of Sec. 2B1.1 (the theft guideline) 
and revises the loss tables in Secs. 2B1.1, 2F1.1, and 2T4.1 (theft, 
fraud, and tax offenses, respectively); (3) changes the current one-
level increments in the loss tables in Secs. 2B1.1, 2F1.1, and 2T4.1 
(to two-level increments or a combination of one and two-level 
increments); (4) increases the severity of the loss tables in 
Secs. 2B1.1, 2F1.1, and 2T4.1 at higher loss amounts; (5) adds 
telemarketing enhancements to Secs. 2B1.1 and 2F1.1; (6) adds a cross 
reference in Sec. 2F1.1 for offenses involving arson; and (7) makes 
conforming technical changes.
    (1) Elimination of More-than-Minimal-Planning Enhancement for 
Sophisticated Means.
    First, the amendment eliminates the specific offense characteristic 
for more-than-minimal planning from the theft and fraud guidelines (and 
a number of other guidelines), and phases in a corresponding increase 
in the loss tables (or, in the case of option 3, into the base offense 
level). Arguments for revising or eliminating the ``more than minimal 
planning'' specific offense characteristic include: (I) the workload 
(and related litigation) burden of the provision is considerable; in 
each of the over 9,000 cases sentenced under these guidelines, some 
consideration is given to whether this SOC is applicable; (ii) the 
definition of more than minimal planning is arguably unclear or 
ambiguous; (iii) past Commission studies have shown that the provision 
is applied unevenly, thus contributing to unwarranted disparity; and 
(iv) the adjustment is applied with such frequency, particularly at 
higher dollar amounts, that it arguably should be built into the loss 
table or even the base offense level. (The more-than-minimal planning 
adjustment is applied in 58.7% of all cases sentenced under Sec. 2B1.1; 
of all cases under Sec. 2F1.1, it is applied in 82.5% (and over 89% of 
cases involving loss amounts greater than $10,000)).
    The amendment proposes creating a two-level specific offense 
characteristic in Secs. 2B1.1 and 2F1.1 (and other guidelines that 
currently have a more-than-minimal planning enhancement) that would 
apply if ``sophisticated means'' were used to impede discovery of the 
existence or extent of the offense (with a floor of level 12). 
Replacing the more-than-minimal planning enhancement with one for 
sophisticated means will increase the fact-finding and application 
burden compared to just deleting the more-than-minimal planning 
enhancement. In addition, in the proposed loss table options at levels 
at or above the point where the two levels from more-than-minimal 
planning are automatically built into the loss table, defendants who 
would receive the new two-level enhancement for sophisticated means 
would effectively receive an additional two-level increase, in addition 
to any others provided in this amendment. It is unclear how many cases 
would be affected by this new enhancement. In conjunction with the 
addition of this enhancement, it is proposed that the current specific 
offense characteristic involving use of foreign bank accounts found at 
subsection (b)(5) (providing a floor of 12 for such offenses), be 
deleted and incorporated into the definition of ``sophisticated means'' 
for all guidelines that currently have a more-than-minimal planning 
enhancement. In FY 1995, of the 6,019 cases sentenced under Sec. 2F1.1, 
3 (.05%) received the enhancement for use of foreign bank accounts.
    (2) Amendments to Loss Tables.
    Three options are presented for changes to the loss tables for the 
theft and fraud guidelines. A corresponding change is proposed to the 
tax loss table in Sec. 2T4.1 (for options 1 and 2; if option 3 is 
chosen, a conforming tax loss table will be prepared). Depending on the 
option chosen, the necessity of factual findings for the lowest loss 
amounts is eliminated by building these loss amounts into the base 
offense level.
    Options 1 and 2 of this proposal provide identical base offense 
levels of 6 for the theft and fraud guidelines. Option 3 provides a 
base offense level of 8.
    (3) Loss Tables--Two-level Increments.
    Second, in options one and three the loss tables are changed from 
the current one-level increments to two-level increments, so that 
broader ranges of dollar loss are assigned to a particular offense 
level increase. Option two generally retains one-level increments, but 
provides two-level increments for losses above $2,000 and $5,000, and 
for loss increments above $5,000,000. Option two retains cutting points 
that are very similar to the current loss tables, but has no consistent 
pattern in the selection of the cutting points.
    Several arguments suggest use of two-level increments in the loss 
tables, as proposed in Options One and Three: (i) Reduction in 
probation officer and judicial workload (broader loss ranges will 
produce fewer ``cutting points''; for example, a two-level loss table--
with no other changes--would go from 18 to 10 cutting points); (ii) 
increased consistency with other offense guidelines (most alternative 
base offense levels and specific offense characteristics increase by at 
least two-level increments; for example, the drug table); and (iii) a 
table with two-level increments is less mechanistic and lessens the 
appearance of false precision compared to the current structure. On the 
other hand, one-level increments provide a smoother increase in levels 
relative to loss amounts, with a minimized ``cliff'' effect and 
somewhat greater proportionality.
    (4) Loss Tables--Increased Severity at Higher Loss Amounts.
    Fourth, all three options provide for increases in the severity 
levels assigned to the higher loss amounts, in addition to the increase 
built into the table (or base offense level) in response to the 
elimination of the more-than-minimal planning adjustment.
    There are several reasons why consideration should be given to 
raising the severity levels for cases involving the largest loss 
amounts. First, the draft report of the Commission-sponsored ``just 
punishment'' study suggests that respondents identified certain kinds 
of cases that may warrant greater punishment for higher loss amounts 
than currently provided by the loss tables in the theft and fraud 
guidelines: embezzlement or theft cases involving bank officials or 
postal workers; fraudulent solicitation for a nonexistent charity; 
fraud involving false mortgage application with no intent to repay; and 
forgery or fraud involving stolen credit cards or writing bad checks.
    Second, the draft results of the Federal Judicial Center survey of 
federal district court judges and chief probation officers reveal 
sentiment that Secs. 2B1.1 and 2F1.1 under punish defendants whose 
offenses involve large monetary losses.
    Third, the Department of Justice and the Criminal Law Committee of 
the Judicial Conference have recommended that consideration be given to 
raising the severity levels at higher loss

[[Page 170]]

amounts for theft and fraud cases to more appropriately punish large-
scale offenders.
    (5) Telemarketing Enhancements.
    The fifth change proposed by this amendment is to add specific 
offense characteristics to Sec. 2F1.1 for offense conduct involving 
telemarketing. In the 1994 omnibus crime bill, Congress raised the 
statutory maximum for telemarketing offenses by five years (18 U.S.C. 
Sec. 2326(1)), and by ten years for such offenses that victimized ten 
or more persons over age 55 or targeted persons over the age of 55 (18 
U.S.C. Sec. 2326(2)). This amendment provides a two-level increase in 
Sec. 2F1.1 for offenses involving telemarketing, and an additional, 
cumulative 2-level increase if the offense victimized 10 or more 
persons over the age of 55, or targeted persons over the age of 55.
    (6) Cross Reference--Arson.
    The sixth change proposed by the amendment is to add to the fraud 
guideline a cross reference to Sec. 2K1.4 (Arson, Property Damage by 
Use of Explosives), if the offense involved arson or property 
destruction by use of explosives, and if the resulting offense level is 
greater. Offenses that involve an underlying arson may be charged as 
frauds. The proposed cross reference better ensures that similar 
offenses are treated similarly.
    (7) Conforming Technical Changes.
    The amendment also makes the following technical changes: In 
Sec. 2B1.1, subsection (b)(3) is proposed for deletion because the 
floor of 6 for offenses involving the theft of mail is unnecessary 
given the proposal to increase the base offense level for all offenses 
under this guideline from 4 to 6; in Sec. 2B1.1, subsection (b)(4)(B) 
providing a four-level increase for offenses involving receiving stolen 
property is revised to provide a two-level increase because of the 
proposed deletion of more than minimal planning (i.e., the current, 
four-level enhancement is applied in the alternative to a two-level 
enhancement for more than minimal planning; if the more-than-minimal 
planning enhancement is subsumed in the loss tables, it is necessary to 
reduce the four-level enhancement for fencing stolen property to two 
levels to maintain equipoise). In Sec. 2F1.1, subsection (b)(2)(B), 
providing an alternative (to the more-than-minimal-planning) two-level 
increase for a scheme involved the defrauding of more than one victim, 
is proposed for deletion because the concerns are handled by building 
the levels for more than minimal planning into the loss table; and the 
definition of more-than-minimal planning in Sec. 1B1.1, comment. 
(n.1(f)), is proposed for deletion and replacement by the definition of 
``sophisticated means'', with corresponding changes to 
Secs. 2A2.1(b)(1), 2B1.1(b)(4)(A), 2B1.3(b)(3), and 2B2.1(b)(1). The 
definition of ``sophisticated means'' currently in Sec. 2T1.1 is 
revised accordingly.

(A) Proposed Amendment

    The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is 
amended by deleting application note 1(f) in its entirety and inserting 
in lieu thereof:
    `` `Sophisticated means to impede discovery of the offense or its 
extent,' includes conduct that is more complex or demonstrates greater 
intricacy or planning than a routine effort to impede discovery of the 
offense or its extent. An enhancement would be applied, for example 
where the defendant used transactions through corporate shells or 
fictitious entities, or used foreign bank accounts or transactions to 
conceal the nature or extent of the fraudulent conduct.''
* * * * *
    Section 2B1.1(a) (Base Offense Level) is amended by deleting ``4'' 
and inserting in lieu thereof [Options 1 and 2: ``6''; Option 3: 
``8''].
    Section 2B1.1 is amended by deleting (b)(1) in its entirety, and 
inserting in lieu thereof, one of the following three options:
Option One
    [``(b) Specific Offense Characteristics
    (1) If the loss was $5,000 or more, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level     
------------------------------------------------------------------------
(A) $5,000 or more........................  Add 2.                      
(B) 10,000 or more........................  Add 4.                      
(C) 22,500 or more........................  Add 6.                      
(D) 50,000 or more........................  Add 8.                      
(E) 120,000 or more.......................  Add 10.                     
(F) 275,000 or more.......................  Add 12.                     
(G) 650,000 or more.......................  Add 14.                     
(H) 1,500,000 or more.....................  Add 16.                     
(I) 3,500,000 or more.....................  Add 18.                     
(J) 8,000,000 or more.....................  Add 20.                     
(K) 18,000,000 or more....................  Add 22.                     
(L) 40,000,000 or more....................  Add 24.                     
(M) 90,000,000 or more....................  Add 26''].                  
------------------------------------------------------------------------

Option Two
    [``(b) Specific Offense Characteristics
    (1) If the loss exceeded $2,000, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)               Increase in level.     
------------------------------------------------------------------------
(A) More than $2,000......................  Add 2.                      
(B) More than 5,000.......................  Add 4.                      
(C) More than 10,000......................  Add 5.                      
(D) More than 20,000......................  Add 6.                      
(E) More than 40,000......................  Add 7.                      
(F) More than 70,000......................  Add 8.                      
(G) More than 120,000.....................  Add 9.                      
(H) More than 200,000.....................  Add 10.                     
(I) More than 350,000.....................  Add 11.                     
(J) More than 500,000.....................  Add 12.                     
(K) More than 800,000.....................  Add 13.                     
(L) More than 1,500,000...................  Add 14.                     
(M) More than 2,500,000...................  Add 15.                     
(N) More than 5,000,000...................  Add 16.                     
(O) More than 7,500,000...................  Add 18.                     
(P) More than 15,000,000..................  Add 20.                     
(Q) More than 25,000,000..................  Add 22.                     
(R) More than 50,000,000..................  Add 24''].                  
------------------------------------------------------------------------

Option Three
    [``(b) Specific Offense Characteristics
    (1) If the loss exceeded $5,000, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)               Level of increase.     
------------------------------------------------------------------------
(A) More than $5,000......................  Add 2.                      
(B) More than 20,000......................  Add 4.                      
(C) More than 60,000......................  Add 6.                      
(D) More than 100,000.....................  Add 8.                      
(E) More than 250,000.....................  Add 10.                     
(F) More than 500,000.....................  Add 12.                     
(G) More than 750,000.....................  Add 14.                     
(H) More than 1,000,000...................  Add 16.                     
(I) More than 3,000,000...................  Add 18.                     
(J) More than 7,000,000...................  Add 20.                     
(K) More than 12,000,000..................  Add 22.                     
(L) More than 20,000,000..................  Add 24.                     
(M) More than 40,000,000..................  Add 26.                     
(N) More than 80,000,000..................  Add 28''].                  
------------------------------------------------------------------------

    Section 2B1.1 is amended by deleting (b)(3) in its entirety and 
inserting in lieu thereof:
    ``If sophisticated means were used to impede discovery of the 
offense or its extent, increase by 2 levels. If the resulting offense 
level is less than level 12, increase to level 12.''
    Section 2B1.1 is amended by deleting (b)(4)(A) in its entirety and 
by amending (b)(4)(B) by deleting ``(B)'' and by deleting and changing 
``4 levels'' to ``2 levels''.
* * * * *.
Option Three Only
    [Section 2F1.1(a) is amended by deleting ``6'' and inserting in 
lieu thereof ``8''].
    Section 2F1.1 is amended by deleting (b)(1) in its entirety, and 
inserting in lieu thereof, one of the following three options:
Option One
    [``(b) Specific Offense Characteristics.
    (1) If the loss was $5,000 or more, increase the offense level as 
follows:

[[Page 171]]



------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level     
------------------------------------------------------------------------
(A) $5,000 or more........................  Add 2.                      
(B) 10,000 or more........................  Add 4.                      
(C) 22,500 or more........................  Add 6.                      
(D) 50,000 or more........................  Add 8.                      
(E) 120,000 or more.......................  Add 10.                     
(F) 275,000 or more.......................  Add 12.                     
(G) 650,000 or more.......................  Add 14.                     
(H) 1,500,000 or more.....................  Add 16.                     
(I) 3,500,000 or more.....................  Add 18.                     
(J) 8,000,000 or more.....................  Add 20.                     
(K) 18,000,000 or more....................  Add 22.                     
(L) 40,000,000 or more....................  Add 24.                     
(M) 90,000,000 or more....................  Add 26''].                  
------------------------------------------------------------------------

Option Two
    [``(b) Specific Offense Characteristics.
    (1) If the loss exceeded $2,000, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Increase in level     
------------------------------------------------------------------------
(A) More than $2,000......................  Add 2.                      
(B) More than 5,000.......................  Add 4.                      
(C) More than 10,000......................  Add 5.                      
(D) More than 20,000......................  Add 6.                      
(E) More than 40,000......................  Add 7.                      
(F) More than 70,000......................  Add 8.                      
(G) More than 120,000.....................  Add 9.                      
(H) More than 200,000.....................  Add 10.                     
(I) More than 350,000.....................  Add 11.                     
(J) More than 500,000.....................  Add 12.                     
(K) More than 800,000.....................  Add 13.                     
(L) More than 1,500,000...................  Add 14.                     
(M) More than 2,500,000...................  Add 15.                     
(N) More than 5,000,000...................  Add 16.                     
(O) More than 7,500,000...................  Add 18.                     
(P) More than 15,000,000..................  Add 20.                     
(Q) More than 25,000,000..................  Add 22.                     
(R) More than 50,000,000..................  Add 24''].                  
------------------------------------------------------------------------

Option Three
    [``(b) Specific Offense Characteristics
    (1) If the loss exceeded $5,000, increase the offense level as 
follows:

------------------------------------------------------------------------
         Loss (apply the greatest)                Level of increase     
------------------------------------------------------------------------
(A) More than $5,000......................  Add 2.                      
(B) More than 20,000......................  Add 4.                      
(C) More than 60,000......................  Add 6.                      
(D) More than 100,000.....................  Add 8.                      
(E) More than 250,000.....................  Add 10.                     
(F) More than 500,000.....................  Add 12.                     
(G) More than 750,000.....................  Add 14.                     
(H) More than 1,000,000...................  Add 16.                     
(I) More than 3,000,000...................  Add 18.                     
(J) More than 7,000,000...................  Add 20.                     
(K) More than 12,000,000..................  Add 22.                     
(L) More than 20,000,000..................  Add 24.                     
(M) More than 40,000,000..................  Add 26.                     
(N) More than 80,000,000..................  Add 28''].                  
------------------------------------------------------------------------

* * * * *
    Section 2F1.1 is amended by deleting (b)(5) in its entirety, and by 
deleting (b)(2) in its entirety, and inserting in lieu thereof:
    ``If sophisticated means were used to impede discovery of the 
offense or its extent, increase by 2 levels. If the resulting offense 
level is less than level 12, increase to level 12.''
    Section 2F1.1 is amended by inserting the following:
    ``(6) If the offense involved telemarketing, increase by 2 levels.
    (7) If the offense [involved telemarketing conduct and either] 
victimized 10 or more persons over the age of 55, or targeted persons 
over the age of 55, increase by 2 levels.''
    Section 2F1.1 is amended by adding the following cross reference as 
(c)(2):
    ``(2) If the offense involved arson or property destruction by use 
of explosives, apply Sec. 2K1.4 (Arson, Property Damage by Use of 
Explosives), if the resulting offense level is greater than that 
determined above.''
* * * * *
    Section 2T1.1 is amended by deleting (b)(5) in its entirety and 
inserting in lieu thereof:
    ``If sophisticated means were used to impede discovery of the 
offense or its extent, increase by 2 levels. If the resulting offense 
level is less than level 12, increase to level 12.''
    Section 2T4.1 is amended by deleting the tax table, and inserting 
in lieu thereof, one of the following two options:
Option One

------------------------------------------------------------------------
                          [``Tax Loss                             Level 
------------------------------------------------------------------------
(A) $5,000 or more.............................................      8  
(B) 10,000 or more.............................................     10  
(C) 22,500 or more.............................................     12  
(D) 50,000 or more.............................................     14  
(E) 120,000 or more............................................     16  
(F) 275,000 or more............................................     18  
(G) 650,000 or more............................................     20  
(H) 1,500,000 or more..........................................     22  
(I) 3,500,000 or more..........................................     24  
(J) 8,000,000 or more..........................................     26  
(K) 18,000,000 or more.........................................     28  
(L) 40,000,000 or more.........................................     30  
(M) 90,000,000 or more.........................................    32'']
------------------------------------------------------------------------

Option Two

------------------------------------------------------------------------
                [``Tax Loss (apply the greatest)                  Level 
------------------------------------------------------------------------
(A) $2,000 or less.............................................      8  
(B) More than 2,000............................................      9  
(C) More than 5,000............................................     10  
(D) More than 10,000...........................................     11  
(E) More than 20,000...........................................     12  
(F) More than 40,000...........................................     13  
(G) More than 70,000...........................................     14  
(H) More than 120,000..........................................     15  
(I) More than 200,000..........................................     16  
(J) More than 350,000..........................................     17  
(K) More than 500,000..........................................     18  
(L) More than 800,000..........................................     19  
(M) More than 1,500,000........................................     20  
(N) More than 2,500,000........................................     21  
(O) More than 5,000,000........................................     22  
(P) More than 7,500,000........................................     24  
(Q) More than 15,000,000.......................................     26  
(R) More than 25,000,000.......................................     28  
(S) More than 50,000,000.......................................    30'']
------------------------------------------------------------------------

Issues for Comment

    The following issues for comment are provided to facilitate 
informed comment on the issues raised by the preceding amendment.
    (1) Loss Tables: In addition to requesting input on the options in 
the proposed amendment, the Commission requests comment on whether 
Secs. 2B1.1 and 2F1.1 should have different base offense levels and 
different starting points and cutting points for the loss tables. If 
so, the Commission requests comment on what the respective base offense 
levels should be (for example, level 6 for Sec. 2B1.1 and level 8 for 
Sec. 2F1.1), on what loss amount should trigger the first increase 
($2,000, $5,000, or $10,000 for Sec. 2B1.1; $2,000, $5,000, $10,000, or 
$20,000 for Sec. 2F1.1), and what the cutting points of the loss tables 
should be.
    (2) Telemarketing offenses: In addition to the issues raised by the 
proposed amendment, the Commission invites comment on whether the 
guidelines should provide a broader enhancement for other frauds 
involving the victimization or targeting of persons over the age of 55. 
The Commission also invites comment on whether the guidelines should be 
amended to add a Chapter Three adjustment that provides a two-level 
increase if the offense, regardless of type, involves the victimization 
of 10 or more persons over the age of 55 or the targeting of persons 
over the age of 55. Alternatively, the Commission invites comment on 
whether Sec. 3A1.1 (Vulnerable Victim) should be amended to provide 
that it will always apply when an offense involves the victimization of 
10 or more persons over the age of 55 or the targeting of persons over 
the age of 55, or to provide an enhancement for offenses involving 
telemarketing conduct.
    (3) Cross Reference: The Commission invites comment on whether the 
following cross reference should be adopted: ``If the offense involved 
a bribe, gratuity, commercial bribe or kickback, or similar conduct, 
apply Sec. 2C1.2 (Offering, Giving, Soliciting, or Receiving a 
Gratuity); Sec. 2C1.5 (Payment to Obtain Public Office); Sec. 2C1.6 
(Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of Farm 
Indebtedness, or Procuring Bank Loan, or Discount of Commercial Paper); 
Sec. 2C1.7 (Fraud Involving Deprivation of

[[Page 172]]

the Intangible Right to the Honest Services of Public Officials; 
Conspiracy to Defraud by Interference with Governmental Functions); or 
Sec. 2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial 
Bribery), whichever is the most applicable, would provide that the 
cross reference should apply only if the listed offense conduct results 
in a higher offense level.''
    (4) Consolidation of Secs. 2B1.1 and 2F1.1: Currently there is 
sometimes confusion about whether a given offense should be sentenced 
using Sec. 2B1.1 or Sec. 2F1.1 and which definition of loss should be 
used. The Commission invites comment on whether Secs. 2B1.1 and 2F1.1 
should be consolidated into one guideline and, if so, what provisions 
of each should be retained in the consolidated guideline, and how the 
two definitions of loss should be combined into one. Alternatively, the 
Commission invites comment on whether the definitions of loss in 
Secs. 2B1.1 and 2F1.1 should be combined into one definition and, if 
so, what provisions of each should be retained in the consolidated 
definition and how the new definition should be worded.

Additional Issues for Comment--Determination of Loss

    These issues for comment solicit input on possible changes to the 
definition of loss in Secs. 2B1.1 and 2F1.1 to clarify the Commission's 
intent, resolve issues raised by case law, and aid in consistency of 
application.
    (1) Standard of causation: Currently, the definition of loss in 
Sec. 2F1.1 does not specify a standard of causation governing whether 
unintended or unexpected losses are to be included in the loss 
calculation under the guidelines. See United States v. Neadle, 72 F.3d 
1104, 1108-11 (3d Cir.) (holding defendant fraudulently posted required 
$750,000 bond to open insurance company accountable for $23 million in 
property damage from a hurricane that the defendant's insurance company 
lacked the assets to cover, loss undoubtedly would have gone 
unreimbursed regardless of defendant's insurance fraud), amended, 79 
F.3d 14 (3d Cir.), cert. denied, 117 S. Ct. 238 (1996).
    The Commission invites comment on whether to clarify the standard 
of causation necessary to link a harm with an offense under 
Sec. 1B1.3(a)(3). More specifically, the Commission requests comment on 
whether it should include only harm proximately caused (or directly 
caused) by the defendant's conduct, or whether it should include all 
harm that would not have occurred ``but for'' the defendant's conduct. 
Finally, the Commission invites comment on whether, regardless of which 
causation standard is adopted, the Commission should invite the 
possibility of a departure when losses far exceed those intended or 
reasonably foreseen by the defendant.
    (2) Market value: The current definition of loss in theft and fraud 
uses the concept of market value as an important factor in determining 
loss. The Commission invites comment on whether this concept should be 
clarified to specify whether retail, wholesale, or black market value 
is intended, depending on the nature of the offense. In addition, the 
Commission invites comment on whether market value includes the 
enhanced value on the black market when it exceeds fair market value, 
or alternatively, whether black market value should be a departure 
consideration.
    (3) Consequential damages and administrative costs--inclusion of 
interest: The definition of loss in fraud provides that reasonably 
foreseeable consequential damages and administrative costs are included 
in determinations of loss only in cases involving procurement fraud or 
product substitution. The Commission invites comment on whether 
consequential damages should be used in determinations of loss in all 
theft and/or fraud cases, and if so, how such damages should be 
determined. Alternatively, should the special rule in fraud on the 
inclusion of consequential damages and administrative costs in loss 
determinations in procurement fraud and product substitution cases be 
deleted? The Commission further invites comment on whether, even if 
consequential damages, generally, are not included in loss, they might 
be used as an offset against the value of the benefit received by the 
victim(s).
    Although the definition of loss in the theft and fraud guidelines 
excludes interest ``that could have been earned had the funds not been 
stolen,'' some courts have interpreted the definition of loss to permit 
inclusion in loss of the interest that the defendant agreed to pay in 
connection with the offense. Cf., United States v. Hoyle, 33 F.3d 415, 
419 (4th Cir. 1994) (``[I]nterest shall not be included to determine 
loss for sentencing purposes.'') with United States v. Gilberg, 75 F.3d 
15, 18-19 (1st Cir. 1996) (including in loss interest on fraudulently 
procured mortgage loan); and United States v. Henderson, 19 F.3d 917, 
928-29 (5th Cir.) (``Interest should be included if, as here, the 
victim had a reasonable expectation of receiving interest from the 
transaction.''), cert. denied, 115 S. Ct. 207 (1994).
    The Commission invites comment on whether the definition of loss 
should be clarified to (A) exclude all interest from loss; (B) to 
permit inclusion of bargained-for interest, or (C) to allow 
consideration of bargained-for interest as a departure factor only.
    (4) Benefit received by victims: Currently, with the exception of 
payments made and collateral pledged in fraudulent loan cases, the 
definition of loss does not specify whether benefit received by the 
victim(s) reduces the amount of the loss. Courts have generally, 
although not unanimously, held that loss in fraud cases must be reduced 
by any benefits received by the victim(s). See, e.g.,United States v. 
Maurello, 76 F.3d 1304, 1311-12 (3d Cir. 1996) (calculating loss by 
subtracting value of satisfactory legal services from amount of fees 
paid to bogus lawyer); United States v. Reddeck, 22 F.3d 1504, 1513 
(10th Cir. 1994) (reducing loss by value of education received from 
bogus university); United States v. Mucciante, 21 F. 3d 1228, 1237-38 
(2d Cir.) (refusing to reduce loss by amount that defendant ``repaid * 
* * as part of a meretricious effort to maintain [the victims'] 
confidences'' in a non-Ponzi scheme), cert. denied 115 S. Ct. 361 
(1994).
    A Ponzi scheme is a particular kind of criminal offense that may 
warrant explicit treatment in the definition of loss. A Ponzi scheme is 
defined as ``a fraudulent investment scheme in which money placed by 
later investors pays artificially high dividends to the original 
investors, thereby attracting even larger investments.'' Bryan A. 
Garner, A Dictionary of Modern Legal Usage 671 (2d ed. 1995). Several 
cases raise some important issues about Ponzi schemes.
    The Seventh Circuit was the first to address the issue of 
calculating loss from a Ponzi scheme. In United States v. Holiusa, 13 
F.3d 1043, 1044-45 (6th Cir. 1994), the defendant perpetuated a Ponzi 
scheme by appropriating $11,625,739 from ``investors'' and returning 
approximately $8,000,000 in ``interest.'' The appellate court rejected 
the district court holding that because the defendant intended ``to 
defraud all of the victims of their money'' he was accountable for the 
full $11,625,739. Id. at 1045; see also U.S.S.G. Sec. 2F1.1, comment. 
(n. 7) (``[I]f an intended loss that the defendant was attempting to 
inflict can be determined, this figure will be used if it is greater 
than the actual loss.''). The court held that ``[t]he full amount 
invested was not the probable or intended loss because [the defendant] 
did not at any point intend

[[Page 173]]

to keep the entire sum. * * * Because he did not intend to and did not 
keep the full $11.6 million, that amount does not reflect the actual or 
intended loss, and is not an appropriate basis for sentencing.'' 
Holiusa, 13 F.3d at 1046-47. The court remanded the case, instructing 
the district court not to include in loss ``amounts that [the 
defendant] both intended to and indeed did return to investors.'' Id. 
at 1048; see also United States v. Wolfe, 71 F.3d 611, 618 (6th Cir. 
1995) (following Holiusa).
    While the Seventh Circuit saw the concept of intended loss as the 
focus of Ponzi scheme loss calculation, the Eleventh Circuit took a 
different approach in United States v. Orton, 73 F.3d 331 (11th Cir. 
1996). The Orton defendant had received $525,865.66 from and returned 
$242,513.65 to the ``investors.'' Twelve investors received more than 
they had invested; the total lost by the other investors was 
$391,540.01. Id. at 333. The Eleventh Circuit adopted what it dubbed 
the ``loss to losing victims'' method: it held the defendant 
accountable for ``the net losses of all victims who lost all or part of 
the money they invested.'' Id. at 334. The money that the defendant 
received from and returned to those investors who ended up with a net 
gain did not enter into the loss calculation. The Orton defendant was 
therefore held accountable for $391,540.01.
    The Commission invites comment on whether the value of the benefit 
received by the victim(s) of an offense should be used to reduce the 
amount of the loss and, if so, how benefits that are more theoretical 
than real should be valued. The Commission also invites comment on 
whether the money returned to victim-investors (including ``profits'') 
in a Ponzi scheme should be included in the calculation of loss. In 
addition, the Commission invites comment on whether in cases involving 
fraudulent representations of a defendant's professional license or 
training, the loss should be reduced by the value of the ``benefit/
service'' given to the victim (or to someone else on the victim's 
behalf) by the defendant, or whether it should be determined based on 
the full charge for the ``service.''
    (5) Diversion of government benefits: The Commission invites 
comment on how loss should be determined in fraud cases involving the 
diversion of government program benefits and kickbacks. These cases 
tend to present special difficulties in determining or estimating loss 
and determining gain. At the same time, there is a strong societal 
interest in the integrity of government programs. More specifically, 
the Commission invites comment on whether the ``value of benefits 
diverted'' in such cases should be reduced by the ``benefits'' or 
services provided by the participants. In addition, the Commission 
invites comment on whether special rules should be devised for such 
cases to facilitate the determination/estimation of loss or gain, such 
as a special rule that determines loss or gain based on a percentage of 
the total value of the benefits diverted and, if so, what percentage 
should be chosen (such as 5-40%). The Commission also invites comment 
on whether the nature and seriousness of such offenses require a 
specific offense characteristic to target such conduct and/or a floor 
offense level to guarantee a minimum offense level.
    (6) Pledged collateral and payments: Currently, the value of 
pledged collateral is determined based on the net proceeds of the sale 
of the collateral, or if the sale has not been accomplished prior to 
sentencing, then the market value of the collateral reduced by the 
expected cost of the sale. See, e.g., United States v. Barrett, 51 F.3d 
86, 90-91 (7th Cir. 1995) (including in loss the drop in value of 
property securing fraudulently obtained loans). The Commission invites 
comment on how and when to determine loss in respect to crediting 
pledged collateral and payments. More specifically, the Commission 
invites comment on whether to clarify the current rule that only 
payments made prior to discovery of the offense are to be credited in 
determining loss, whether to clarify or change the current rule that 
provides that the value of the pledged collateral is determined by the 
amount the lending institution has recovered or can expect to recover, 
and whether to clarify what constitutes ``discovery of the offense.'' 
In addition, the Commission invites comment on whether the value of the 
pledged collateral should be determined at the time it is pledged or at 
the time of discovery of the offense, or some other time. In addition, 
the Commission invites comment on whether unforeseen (or unforeseeable) 
decreases (or increases) in the value of the collateral should affect 
the credit to be used to determine loss.
    (7) Gain: Currently gain can be used in lieu of loss in certain 
limited circumstances under Sec. 2F1.1. Compare United States v. Kopp, 
951 F.2d 521, 530 (3d Cir. 1991) (holding that gain cannot be used if 
loss is measurable even if loss is zero), with United States v. 
Haddock, 12 F.3d 950, 960 (10th Cir. 1993) (allowing gain to be used as 
alternative at all times). The Commission invites comment on whether to 
clarify the issue of whether or not gain may be used in lieu of loss. 
If the rule should be clarified, should upward departures be encouraged 
if the amount of gain substantially exceeds loss? Alternatively, the 
Commission invites comment on whether gain should be used whenever it 
is greater than actual or intended loss and, if so, how gain should be 
determined. The Commission also invites comment on whether there are 
situations in which gain should be used for theft-type cases under 
Sec. 2B1.1.
    (8) Intended loss: Intended loss is to be used in fraud cases when 
it is determined to be greater than actual loss. Sec. 2F1.1, comment. 
(n. 7). Some courts have held that intended loss should be limited by 
concepts of ``economic reality'' or impossibility. Compare United 
States v. Moored, 38 F.3d 1419, 1425 (6th Cir. 1994) (focusing on loss 
that defendant ``realistically intended'') with United States v. 
Lorenzo, 995 F.2d 1448, 1460 (9th Cir.) (``[T]he amount of [intended] 
loss * * * does not have to be realistic.''), cert. denied, 510 U.S. 
881 (1993).
    The Commission invites comment on whether the current rule should 
be changed to provide that loss is to be based primarily on actual 
loss, with intended loss available only as a possible ground for 
departure. The Commission further invites comment on whether, if the 
substance of the current rule is to be retained, the magnitude of 
intended loss should be limited by the amount that the defendant 
realistically could have succeeded in obtaining. More specifically, the 
Commission invites comment on whether intended loss should be limited 
by concepts of ``economic reality'' or impossibility, such as in a 
government sting operation where there can be no loss, or in a false 
insurance claims case in which the defendant submits a claim for an 
amount in excess of the fair market value of the item.
    (9) Risk of loss: Currently, in some cases defendants obtain loans 
by fraudulent means but the loss is determined to be zero because of 
pledged collateral and payments made prior to discovery. The Commission 
invites comment on whether the definition of loss should be revised to 
include the concept of risk of loss, so as to ensure higher punishment 
levels for defendants who commit serious crimes that, because of the 
value of pledged collateral or payments made before discovery, result 
in low or even zero loss, and if so, how the risk of loss might be 
determined. See Sec. 2F1.1, comment. (n. 7).

[[Page 174]]

    (10) Loss amounts that over- or understate the significance of the 
offense: The Commission invites comment on whether to provide guidance 
for applying the current provision allowing departure where the loss 
amount over- or understates the significance of the offense. See 
Sec. 2F1.1, comment. (n. 10). More specifically, the Commission invites 
comment on whether to specify that where the loss amount included 
through Sec. 1B1.3 (Relevant Conduct) is far in excess of the benefit 
personally derived by the defendant, the court might depart down to an 
offense level corresponding to the loss amount that more appropriately 
measures the defendant's culpability. Alternatively, the Commission 
invites comment on whether to provide a specific offense characteristic 
or special rule to reduce the offense level in such cases.

Chapter Two, Part M

    19(A). Issue for comment: Section 511 of the Antiterrorism and 
Effective Death Penalty Act of 1996 pertains to biological weapons. It 
incorporates attempt and conspiracy into 18 U.S.C. Sec. 175, which 
prohibits the production, stockpiling, transferring, acquiring, 
retaining, or possession of biological weapons. It also expands the 
scope of biological weapons provisions in chapter 10 of title 18 by 
expanding the meaning of biological agents.
    Section 521 creates a new offense at 18 U.S.C. Sec. 2332c. The new 
offense smakes it unlawful for a person, without lawful authority, to 
use (or attempt or conspire to use) a chemical weapon against a United 
States national outside the United States, any person within the United 
States, or any federal property. The penalty is any term of years or 
life or, if death results, death or any term of years or life.
    The Commission invites comment as to how the guidelines could be 
amended to include these statutes. One approach could be to amend 
Sec. 2M6.1 (Unlawful Acquisition, Alteration, Use, Transfer, or 
Possession of Nuclear Material, Weapons, or Facilities) to include 
these statutes. If the Commission were to select this approach, what 
changes, if any, would be appropriate to accommodate these offenses?
    (B) Issue for comment: Section 702 creates a new offense at 18 
U.S.C. Sec. 2332b. The new offense makes it unlawful for a person, 
committing conduct occurring outside the United States and conduct 
occurring inside the United States and under specified circumstances, 
to (1) kill, kidnap, maim, or commit an assault resulting in serious 
bodily injury or with a dangerous weapon, or (2) create a substantial 
risk of serious bodily injury to another person by damaging (or 
conspiring to damage) any real or personal property within the United 
States. The specified circumstances are using or obstructing interstate 
or foreign commerce, having the federal government or one of its 
employees or agents as a victim or intended victim, involving federal 
property, and committing the offense in the territorial sea of the 
United States or within the special maritime or territorial 
jurisdiction of the United States.
    The terms of imprisonment under the new offense are (1) death, or 
life, or any term of years, if death resulted; (2) any term of years, 
for kidnaping; (3) not more than 35 years, for maiming; (4) not more 
than 30 years, for assault; (5) not more than 25 years, for damaging or 
destroying property; (6) for any term of years not exceeding that which 
would have applied if the offense had been committed, for a conspiracy; 
and (7) not more than 10 years, for threatening to commit any such 
offense.
    The provision also expressly precludes the imposition of a term of 
probation for any of the above-described offenses and precludes the 
imposition of concurrent sentences for terms of imprisonment imposed 
under this section with any other terms of imprisonment.
    The Commission invites comment on how the guidelines should be 
amended to include this statute. For example, one option could be to 
amend the statutory index to reference the statute to the guideline for 
each of the underlying offenses.

Section 2X3.1  Accessory After the Fact

Section 2X4.1  Misprision of Felony

    20. Synopsis of Proposed Amendment: This is a three-part amendment. 
First, this amendment clarifies the application of Sec. 2X3.1 when this 
guideline is used as the result of a cross reference.
    Second, this amendment clarifies the interaction of Sec. 1B1.3 
(Relevant Conduct) with Secs. 2X3.1 (Accessory After the Fact) and 
2X4.1 (Misprision of Felony). In the case of a guideline with 
alternative base offense levels, as opposed to one base offense level 
and one or more specific offense characteristics, the question has 
arisen as to whether the knowledge requirement set forth in Application 
Note 1 applies to the selection of the appropriate base offense level. 
Consistent with Sec. 1B1.3, this amendment clarifies that the knowledge 
requirement does apply.
    Finally, this amendment clarifies that, for purposes of Secs. 2X3.1 
and 2X4.1, if the offense guideline applicable to the underlying 
offense refers to the defendant, such reference is to the defendant who 
committed the underlying offense, not to the defendant who is convicted 
of being an accessory or to the defendant who committed the misprision.
    Proposed Amendment: The Commentary to Sec. 2X3.1 captioned 
``Application Notes'' is amended in Note 1 by deleting:
    ``Apply the base offense level plus any applicable specific offense 
characteristics that were known, or reasonably should have been known, 
by the defendant; see Application Note 10 of the Commentary to 
Sec. 1B1.3 (Relevant Conduct).'',
    And inserting in lieu thereof:
    ``However, if the application of Sec. 2X3.1 results from a cross 
reference or other instruction in another Chapter Two offense guideline 
(e.g., Secs. 2J1.2(c)(1), 2J1.3(c)(1)), the underlying offense is the 
offense determined by that cross reference or instruction. Determine 
the offense level (base offense level, specific offense 
characteristics, and cross references) based on the conduct that was 
known, or reasonably should have been known, by the defendant; see 
Application Note 10 of the Commentary to Sec. 1B1.3 (Relevant Conduct). 
In addition, if the Chapter Two offense guideline applicable to the 
underlying offense refers to the defendant, such reference is to the 
defendant who committed the underlying offense, not to the defendant 
who is convicted of being an accessory or to whom this section applies 
due to a cross reference or other instruction in another Chapter Two 
offense guideline.''.
    The Commentary to Sec. 2X4.1 captioned ``Application Notes'' is 
amended in Note 1 by deleting ``Apply the base offense level plus any 
applicable specific offense characteristics that were'' and inserting 
in lieu thereof ``Determine the offense level (base offense level, 
specific offense characteristics, and cross references) based on the 
conduct that was''; and by inserting at the end the following as the 
last sentence:
    ``In addition, if the Chapter Two offense guideline applicable to 
the underlying offense refers to the defendant, such reference is to 
the defendant who committed the underlying offense, not to the 
defendant who is convicted of committing the misprision or to whom this 
section applies due to a cross reference or other instruction in 
another Chapter Two offense guideline.''.

[[Page 175]]

Part B--Role in the Offense

Introductory Commentary, Sec. 3B1.1 (Aggravating Role)

    21. Synopsis of Proposed Amendment: This two-part amendment (A) 
revises the Introductory Commentary to Chapter Three, Part B to put the 
application of Secs. 3B1.1 (Aggravating Role) and 3B1.2 (Mitigating 
Role) in perspective and show the relationship among these adjustments, 
and (B) revises Sec. 3B1.1. Options 1 and 2 of Part B maintain the 
current structure of Sec. 3B1.1 but revise the guideline to provide 
clearer definitions and cure a significant anomaly in the current 
guideline structure. Option 3 presents an alternative structure similar 
to the proposed amendment to Sec. 3B1.2.
    Following the amendment to Sec. 3B1.2 are several issues for 
comment designed to elicit suggestions for alternative approaches.
    (A) Proposed Amendment: Chapter 3, Part B--Role in the Offense is 
amended in the first sentence of the Introductory Commentary by 
inserting ``whether, in committing the offense,'' immediately following 
``based upon'';
    By deleting ``role the'' immediately before ``defendant'';
    By inserting ``(A)'' immediately following ``defendant'';
    By deleting ``in committing the offense'' and inserting in lieu 
thereof ``an aggravating or a mitigating role, (B) abused a position of 
trust or used a special skill, or (C) used a minor''.
    Chapter 3, Part B--Role in the Offense is amended in the second 
sentence of the Introductory Commentary by deleting ``The determination 
of a defendant's role in the offense'' and inserting in lieu thereof 
``Each of these determinations'';
    By deleting ``all'' and inserting in lieu thereof ``the'';
    By deleting ``within the scope of'' and inserting in lieu thereof 
``for which the defendant is accountable under'';
    And by deleting the ``,'' immediately following ``(Relevant 
Conduct)'' and inserting in lieu thereof a ``;''.
    Chapter 3, Part B--Role in the Offense is amended in the 
Introductory Commentary by deleting the second paragraph in its 
entirety and inserting in lieu thereof the following:
    Sections 3B1.1 (Aggravating Role) and 3B1.2 (Mitigating Role) are 
designed to provide appropriate adjustments in the defendant's offense 
level based on the defendant's role and relative culpability in the 
offense conduct for which the defendant is accountable under Sec. 1B1.3 
(Relevant Conduct). For Sec. 3B1.1 (Aggravating Role) or Sec. 3B1.2 
(Mitigating Role) to apply, the offense must involve the defendant and 
at least one other participant. If an offense has only one participant, 
neither Sec. 3B1.1 nor Sec. 3B1.2 will apply. In some cases, some 
participants may warrant an upward adjustment under Sec. 3B1.1, other 
participants may warrant a downward adjustment under Sec. 3B1.2, and 
still other participants may warrant no role adjustment.''.
    (B) Proposed Amendment:
    Option 1:
    Section Sec. 3B1.1 is amended by deleting ``follows:'' and 
inserting in lieu thereof ``follows (Apply the Greatest):''.
    Section Sec. 3B1.1(a) is amended by deleting ``a criminal activity 
that involved five or more participants or was otherwise extensive'' 
and inserting in lieu thereof ``an offense that involved at least four 
other participants or was otherwise extensive''.
    Section Sec. 3B1.1(b) is amended by deleting ``(but not an 
organizer or leader) and the criminal activity involve five or more 
participants or was otherwise extensive'' and inserting in lieu thereof 
``(1) of at least [three][four] other participants in the offense, or 
(2) in an offense that was otherwise extensive''.
    Section Sec. 3B1.1(c) is amended by deleting ``in any criminal 
activity other than described in (a) or (b)'' and inserting in lieu 
thereof ``of at least one other participant in the offense''.
    The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting at the beginning ``For purposes of this 
guideline-'';
    By deleting ``convicted'' and inserting in lieu thereof ``charged 
[or specifically identified, so long as the court determines that the 
offense involved another person]''.
    The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is 
amended by deleting Note 2 in its entirety and inserting in lieu 
thereof the following as paragraphs two and three of Note 1:
    ``An `organizer' or `leader' is the participant who is primarily 
responsible for the criminal venture; the person in overall charge of 
the other participant(s). Generally, the organizer or leader will be 
the person who plans and organizes the offense, recruits the other key 
participant(s), makes the key decisions, directs and controls the 
actions of other participants, and receives the largest share of the 
proceeds. In some offenses (generally larger scale offenses), there may 
be more than one organizer or leader. The term `organizer' or leader is 
not intended to apply to a person who merely suggests the commission of 
the offense.
    A `manager' or `supervisor' is a person, other than an `organizer' 
or `leader,' who exercises managerial or supervisory authority over one 
or more other participants, either directly or indirectly. A manager or 
supervisor is at a lower level in the hierarchy than the organizer or 
leader of the offense, and generally will receive a share of the 
proceeds that is less than that of the organizer or leader but greater 
than that of the participant(s) that he or she manages or 
supervises.''.
    The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is 
amended by redesignating Note 3 as Note 2; and inserting the following 
as the new Note 3:
    ``3. In the case of a defendant who would have merited a minor or 
minimal role adjustment but for the defendant's supervision of other 
minor or minimal participants, do not apply an adjustment from 
Sec. 3B1.1 (Aggravating Role). Instead, this factor is to be considered 
in determining the appropriate reduction, if any, under Sec. 3B1.2 
(Mitigating Role). For example, if the defendant would have merited a 
reduction for a minimal role but for his or her supervision of other 
minimal participants, a reduction for a minor, rather than a minimal, 
role ordinarily would be appropriate. Similarly, if the defendant would 
have merited a reduction for a minor role but for his or her 
supervision of other minimal or minor participants, no reduction for 
role in the offense ordinarily would be appropriate.
    The interaction of Secs. 3B1.1 and 3B1.2 is to be addressed in the 
manner described above. Thus, if an adjustment from Sec. 3B1.1 is 
applied, an adjustment from Sec. 3B1.2 may not be applied.''.
    The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is 
amended by deleting Note 4 in its entirety and inserting in lieu 
thereof the following:
    ``4. Illustrations of Circumstances That May Warrant an Upward 
Departure.
    There may be circumstances in which a defendant has a more culpable 
role in the offense but does not qualify for an upward adjustment under 
this section. In such circumstances, an upward departure may be 
considered. The following are examples of circumstances that may 
warrant an upward departure analogous to an aggravating role 
adjustment:
    (A) A defendant who exercised management responsibility over the 
property, assets, or activities of a criminal organization but who did 
not organize, lead, manage, or supervise another participant.

[[Page 176]]

    (B) In a controlled substance offense, a defendant who functions at 
a relatively high level in a drug distribution network but who, 
nevertheless, may not qualify for an aggravating role adjustment 
because he or she does not exercise supervisory control over other 
participants.''.
    Option 2:
    Section 3B1.1(a) is amended by deleting ``a criminal activity that 
involved five or more participants or was otherwise extensive'' and 
inserting in lieu thereof ``an offense that involved at least four 
other participants or was otherwise extensive''.
    Section 3B1.1 is amended by deleting subsection (b) in its 
entirety.
    Section 3B1.1 is amended by redesignating subsection (c) as 
subsection (b); by deleting ``in any criminal activity other than 
described in (a) or (b)'' and inserting in lieu thereof ``of one other 
participant in the offense''.
    Section 3B1.1 is amended by inserting as an additional paragraph at 
the end ``In cases falling between (a) and (b), increase by 3 
levels.''.
    The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting at the beginning ``For purposes of this 
guideline-''; by deleting ``convicted'' and inserting in lieu thereof 
``charged [or specifically identified, so long as the court determines 
that the offense involved another person]''; and by inserting the 
following additional paragraphs:
    ``An `organizer' or `leader' is the participant who is primarily 
responsible for the criminal venture; the person in overall charge of 
the other participant(s). Generally, the organizer or leader will be 
the person who plans and organizes the offense, recruits the other key 
participant(s), makes the key decisions, directs and controls the 
actions of other participants, and receives the largest share of the 
proceeds. In some offenses (generally larger scale offenses), there may 
be more than one organizer or leader. The term `organizer' or `leader' 
is not intended to apply to a person who merely suggests the commission 
of the offense.
    A `manager' or `supervisor' is a person, other than an `organizer' 
or `leader,' who exercises managerial or supervisory authority over one 
or more other participants, either directly or indirectly. A manager or 
supervisor is at a lower level in the hierarchy than the organizer or 
leader of the offense, and generally will receive a share of the 
proceeds that is less than that of the organizer or leader but greater 
than that of the participant(s) that he or she manages or 
supervises.''.
    The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is 
amended by deleting Note 2 in its entirety and inserting in lieu 
thereof:
    ``To qualify for a four-level adjustment under subsection (a), the 
defendant must be an organizer or leader of an offense involving at 
least four participants in addition to the defendant. The defendant 
need not, however, personally exercise supervisory control over all 
such participants. To qualify for a two-level adjustment under 
subsection (b), the defendant must have been the organizer, leader, 
manager, or supervisor of one other participant. In cases falling 
between subsections (a) and (b), i.e., where the defendant organizes, 
leads, manages, or supervises more than one participant but whose 
aggravating role does not rise to the level of that described in 
subsection (a), a three level upward adjustment is warranted.''.
    The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is 
amended by deleting Note 4 in its entirety and inserting in lieu 
thereof the following:
    ``4. In the case of a defendant who would have merited a minor or 
minimal role adjustment but for the defendant's supervision of other 
minor or minimal participants, do not apply an adjustment from 
Sec. 3B1.1 (Aggravating Role). Instead, this factor is to be considered 
in determining the appropriate reduction, if any, under Sec. 3B1.2 
(Mitigating Role). For example, if the defendant would have merited a 
reduction for a minimal role but for his or her supervision of other 
minimal participants, a reduction for a minor, rather than a minimal, 
role ordinarily would be appropriate. Similarly, if the defendant would 
have merited a reduction for a minor role but for his or her 
supervision of other minimal or minor participants, no reduction for 
role in the offense ordinarily would be appropriate.
    The interaction of Secs. 3B1.1 and 3B1.2 is to be addressed in the 
manner described above. Thus, if an adjustment from Sec. 3B1.1 is 
applied, an adjustment from Sec. 3B1.2 may not be applied.''.
    The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is 
amended by inserting the following additional note:
    ``5. Illustrations of Circumstances That May Warrant an Upward 
Departure.
    There may be circumstances in which a defendant has a more culpable 
role in the offense but does not qualify for an upward adjustment under 
this section. In such circumstances, an upward departure may be 
considered. The following are examples of circumstances that may 
warrant an upward departure analogous to an aggravating role 
adjustment:
    (A) A defendant who exercised management responsibility over the 
property, assets, or activities of a criminal organization but who did 
not organize, [lead], manage, or supervise another participant.
    (B) In a controlled substance offense, a defendant who functions at 
a relatively high level in a drug distribution network but who, 
nevertheless, may not qualify for an aggravating role adjustment 
because he or she does not exercise supervisory control over other 
participants.''.
    Option 3:
    Section 3B1.1 is deleted in its entirety and inserting in lieu 
thereof the following:

``Section 3B1.1. Aggravating Role

    Based on the defendant's role in the offense as a substantially 
more culpable participant, increase the offense level as follows (Apply 
the greater):
    (a) If the defendant had [a major aggravating] role in [the] [a 
large-scale] offense, increase by 4 levels.
    (b) If the defendant had [a lesser aggravating] role in the 
offense, increase by 2 levels.
Commentary
    Application Notes:
    1. For purposes of this guideline--
    A ``participant'' is a person who is criminally responsible for the 
commission of the offense, but need not have been charged [or 
specifically identified, so long as the court determines that the 
offense involved another such person]. A person who is not criminally 
responsible for the commission of the offense (e.g., an undercover law 
enforcement officer) is not a participant.

[``Large-scale offense'' means an offense that involved at least five 
participants, including the defendant, or an offense that involved at 
least two participants, including the defendant, and is otherwise 
extensive.]

    2. For a major aggravating role adjustment to apply under 
subsection (a), the defendant must be (A) a substantially more culpable 
participant, and (B) among the most culpable participants in the 
offense. The following is a non-exhaustive list of characteristics 
typically possessed by a defendant with a major aggravating role:
    (i) Broad knowledge and understanding of the scope and structure of 
the offense, and of the identity and role of the other participants in 
the offense;
    (ii) Sophisticated tasks performed;

[[Page 177]]

    (iii) [Primary] [major] decision-making authority in the offense;
    (iv) [Primary] [major] responsibility and control over the 
property, finances, and other participants involved in the offense;
    (v) The anticipated or actual total compensation or benefit was 
large in comparison to the total return typically associated with 
offenses of the same type and scope; and
    (vi) Recruitment of other participants in the offense.
    3. For a lesser role adjustment to apply under subsection (b), the 
defendant must (A) be a substantially more culpable participant, and 
(B) typically possess some of the characteristics associated with a 
major aggravating role, but not qualify for a major aggravating role 
adjustment.
    4. The determinations of (A) whether a defendant is a substantially 
more culpable participant warranting an aggravating role adjustment 
under this section, and (B) if so, whether a major aggravating or 
lesser aggravating role adjustment is more appropriate, involve case-
specific, fact-based assessments of the defendant's conduct in 
comparison to that of other participants in the offense. [In making 
these determinations, and particularly in determining whether a 
defendant in fact has an aggravating role, the court may also wish to 
compare the conduct of the defendant to the conduct of an average 
participant in an offense of the same type and scope.] The sentencing 
judge is in a unique position to make these determinations, based on 
the judge's assessment of all of the relevant circumstances.
    19. In the case of a defendant who would have merited a minor or 
minimal role adjustment but for the defendant's supervision of other 
minor or minimal participants, do not apply an adjustment from 
Sec. 3B1.1 (Aggravating Role). Instead, this factor is to be considered 
in determining the appropriate reduction, if any, under Sec. 3B1.2 
(Mitigating Role). For example, if the defendant would have merited a 
reduction for a minimal role but for his or her supervision of other 
minimal participants, a reduction for a minor, rather than a minimal, 
role ordinarily would be appropriate. Similarly, if the defendant would 
have merited a reduction for a minor role but for his or her 
supervision of other minimal or minor participants, no reduction for 
role in the offense ordinarily would be appropriate.
    The interaction of Secs. 3B1.1 and 3B1.2 is to be addressed in the 
manner described above. Thus, if an adjustment from Sec. 3B1.1 is 
applied, an adjustment from Sec. 3B1.2 may not be applied.''.

Section 3B1.2  Mitigating Role

    22(A). Synopsis of Proposed Amendment: This amendment clarifies the 
operation of the mitigating role adjustment in Sec. 3B1.2, as follows:
    1. The language in the guideline is standardized by using the term 
``offense'' instead of ``criminal activity.''
    2. The ``intermediate,'' three-level reduction is bracketed for 
possible deletion because it does not provide a meaningfully distinct 
category and is unnecessary in view of the overlapping ranges feature 
of the Sentencing Table.
    3. A common, umbrella definition for mitigating role; i.e., 
``substantially less culpable participant'' is provided. This 
definition should assist the court in distinguishing mitigating role 
defendants from those who receive an aggravating or no role adjustment.
    4. Commentary in current Application Note 2 that has been viewed as 
overly restrictive in regard to the minimal role adjustment is removed. 
In its place, a non-exhaustive list of typical characteristics 
associated with minimal role is provided. The characteristics are 
derived from the case law and staff review of mitigating role cases.
    5. A somewhat more helpful but still flexible definition of minor 
role is provided.
    6. Commentary is added to reflect Commission intent that district 
court assessments of mitigating role should be reviewed deferentially.
    7. A circuit conflict regarding how mitigating role comparisons 
should be done--whether within the context of relevant conduct or, also 
by comparing the defendant to a hypothetical average participant--is 
addressed. The suggested ``compromise'' resolution (see bracketed 
language in Application Note 4) is to require the relevant conduct 
comparison but also suggest/allow the broader, ``average participant'' 
comparison if the court finds it helpful.
    8. Commentary is added to address the burden of persuasion in a 
common-sense fashion consistent with the overall guidelines structure.
    9. Commentary is added to address another circuit conflict 
regarding whether a court can analogize to mitigating role and 
downwardly depart when a defendant is ``directed'' to some extent by a 
government agent or other person who is not a criminally responsible 
participant. Whether the bracketed language that provides a qualified 
``yes'' answer should be included is a policy judgment for the 
Commission.
    10. The existing background commentary is removed because it is 
largely redundant and unnecessary.
    Option 1:
    Section Sec. 3B1.2 is amended in the first paragraph by inserting 
``as a substantially less culpable participant'' immediately following 
``offense''.
    Section Sec. 3B1.2(a) is amended by deleting ``was a minimal 
participant in any criminal activity'' and inserting in lieu thereof 
``had a minimal role in the offense''.
    Section Sec. 3B1.1(b) is amended by deleting ``was a minor 
participant in any criminal activity'' and inserting in lieu thereof 
``had a minor role in the offense''.
    Option 2:
    Section Sec. 3B1.2 is amended by inserting ``as a substantially 
less culpable participant'' immediately following ``offense''.
    Section Sec. 3B1.2(a) is amended by deleting ``was a minimal 
participant in any criminal activity'' and inserting in lieu thereof 
``had a minimal role in the offense''.
    Section Sec. 3B1.1(b) is amended by deleting ``was a minor 
participant in any criminal activity'' and inserting in lieu thereof 
``had a minor role in the offense''.
    Section Sec. 3B1.2 is amended by deleting ``In cases falling 
between (a) and (b), decrease by 3 levels.''.
    Options 1 and 2:
    The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
amended by deleting Note 1 in its entirety and inserting in lieu 
thereof the following:
    ``1. For purposes of this guideline--
    `Participant' is defined in the Commentary to Sec. 3B1.1 
(Aggravating Role).
    `Substantially less culpable participant' means a defendant who (A) 
is recruited by, or voluntarily assists, another more culpable 
participant in facilitating the commission of a criminal offense, and 
(B) performs one or more limited, discrete functions that typically are 
less critical to the success of the offense.''.
    The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
amended by deleting Note 2 in its entirety and inserting in lieu 
thereof the following:
    ``2. For a minimal role adjustment to apply under subsection (a), 
the defendant must be (A) a substantially less culpable participant, 
and (B) among the least culpable participants in the offense. The 
following is a non-exhaustive list of characteristics typically 
possessed by a defendant with a minimal role:
    (i) Lack of knowledge or understanding of the scope and

[[Page 178]]

structure of the offense, and of the identity or role of the other 
participants in the offense;
    (ii) only unsophisticated tasks performed;
    (iii) no material decision-making authority in the offense;
    (iv) no, or very minimal, supervisory responsibility over the 
property, finances, or other participants involved in the offense; and
    (v) the anticipated or actual total compensation or benefit was 
small in comparison to the total return typically associated with 
offenses of the same type and scope.''.
    The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
amended by deleting Note 3 in its entirety and inserting in lieu 
thereof the following:
    ``3. For a minor role adjustment to apply under subsection (b), the 
defendant must (A) be a substantially less culpable participant, and 
(B) typically possess some of the characteristics associated with a 
minimal role, but not qualify for a minimal role adjustment.''.
    The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
amended in Note 4 by inserting in the first sentence ``a'' immediately 
before ``substantially'' and by deleting ``than'' and inserting in lieu 
thereof ``participant compared to''.
    The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
amended by redesignating Note 4 as Note 5 and inserting the following 
new Note 4:
    ``4. The determinations of (A) whether a defendant is a 
substantially less culpable participant warranting a mitigating role 
adjustment under this section, and (B) if so, whether a minimal or 
minor role adjustment is more appropriate, involve case-specific, fact-
based assessments of the defendant's conduct in comparison to that of 
other participants in the offense. [In making these determinations, and 
particularly in determining whether a defendant in fact has a 
mitigating role, the court may also wish to measure the defendant's 
conduct and relative culpability against the elements of the offense of 
conviction and to compare the conduct of the defendant to the conduct 
of an average participant in an offense of the same type and scope.] 
The sentencing judge is in a unique position to make these 
determinations, based on the judge's assessment of all of the relevant 
circumstances.
    The defendant bears the burden of persuasion in establishing 
whether the defendant qualifies for a minimal or minor role adjustment 
under this section. As with any other factual issue, the court, in 
weighing the totality of the circumstances, is not required to find, 
based solely on the defendant's bare assertion, that such a role 
adjustment is warranted.''.
    The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
amended by inserting the following additional note:
    ``6. If the defendant would be a substantially less culpable 
participant but for the fact that the defendant was recruited by a 
person who is not criminally responsible for the commission of the 
offense (e.g., an undercover law enforcement officer), a downward 
departure may be warranted. Such a downward departure should not 
result, without more, in a lower sentence than would result if the 
defendant had received a mitigating role adjustment under this 
section.''.
    (B) Additional Issues for Comment: (1) The Commission invites 
comment on whether, as an alternative to separate guidelines for 
aggravating role (Sec. 3B1.1) and mitigating role (Sec. 3B1.2), it 
should adopt a single or unitary role guideline with aggravating, 
mitigating, and no role adjustments. What would be the advantages and/
or disadvantages of such an approach in comparison to the current 
structure?
    (2) Focusing on aggravating role, Option 3, the Commission invites 
comment on characteristics, in addition to those suggested, that 
reliably distinguish among aggravating role adjustments, as well as 
those characteristics that reliably distinguish defendants with an 
aggravating role from those warranting no role adjustment or a 
mitigating role adjustment.
    (3) Focusing on mitigating role, the Commission invites comment on 
characteristics, in addition to those suggested in the proposed 
amendment, that distinguish defendants with a mitigating role from 
defendants who do not merit such an adjustment. Additionally, the 
Commission invites suggestions regarding characteristics, factors, and/
or definitional language that would better provide a meaningful 
distinction between minimal role and minor role. Finally, the 
Commission invites comment on whether it should expressly state whether 
``couriers'' or ``mules'' receive a minimal, minor, or no role 
adjustment.

Section 3C1.1  Obstructing or Impeding the Administration of Justice

    23. Synopsis of Proposed Amendment: This amendment addresses a 
split in the circuits over the meaning of the last sentence of 
Application Note 1 in the Commentary to the Chapter Three adjustment 
for obstruction of justice. The issue is whether that sentence requires 
the use of a heightened standard of proof when the court applies an 
enhancement for perjury. Compare United States v. Montague, 40 F.3d 
1251 (D.C. Cir. 1994) (applying the clear and convincing standard) with 
United States v. Zajac, 62 F.3d 145 (6th Cir. 1995) (applying the 
preponderance of the evidence standard). The amendment changes the last 
sentence of Application Note 1 so that it no longer suggests the use of 
a heightened standard of proof. Instead, it clarifies that the court 
should be mindful that not all inaccurate testimony or statements 
reflect a willful attempt to obstruct justice.
    Second, subdivision (i) of Application Note 3 in Sec. 3C1.1 is 
deleted as unnecessary. This subdivision is not helpful in contrasting 
the types of conduct that are serious enough to warrant an enhancement 
from those that are not serious enough to warrant the enhancement. The 
statutes referred to in subsection (i) include a hodgepodge of 
provisions. Some have very marginal, if any, relevance, e.g., 18 U.S.C. 
Sec. 1507 (picketing or parading); and some, e.g., 18 U.S.C. Sec. 1514 
(civil action to restrain harassment of a victim or witness), and 1515 
(definitions for certain provisions; general provision) have no 
relevance at all.
    Third, this amendment adds an additional sentence at the end of 
Application Note 4 in Sec. 3C1.1 to clarify the meaning of the phrase 
``absent a separate count of conviction.'' A panel of the Seventh 
Circuit, although reaching the correct result, has examined this phrase 
and found it to be unclear. See United States v. Giacometti, 28 F.3d 
698 (7th Cir. 1994).
    Fourth, this amendment moves the last two sentences of Application 
Note 6 into a separate Application Note 7. This clarifies that the 
guidance provided in these two sentences applies to a broader set of 
cases than the cases described in the first two sentences of 
Application Note 6.
    Proposed Amendment: The Commentary to Sec. 3C1.1 captioned 
``Application Notes'' is amended in Note 1 by deleting in the second 
sentence ``such testimony or statements should be evaluated in a light 
most favorable to the defendant'' and inserting the following in lieu 
thereof:
    ``The court should be cognizant that inaccurate testimony or 
statements sometimes may result from confusion, mistake, or faulty 
memory and, thus, not all inaccurate testimony or statements 
necessarily reflect a willful attempt to obstruct justice.''.
    The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is 
amended in

[[Page 179]]

Note 3(h) by deleting the ``;'' and inserting in lieu thereof ``,''.
    The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is 
amended in Note 3 by deleting subsection (i) in its entirety.
    The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is 
amended in Note 4 by deleting ``The following is a non-exhaustive list 
of examples of the'' and inserting in lieu thereof ``Some'';
    By deleting ``that, absent a separate count of conviction for such 
conduct,'' and inserting in lieu thereof ``ordinarily'';
    By deleting ``but ordinarily can appropriately be sanctioned by the 
determination of the particular'' and inserting in lieu thereof ``but 
may warrant a greater''; by inserting immediately following ``guideline 
range'' the following:
    ``. However, if the defendant is convicted of a separate count for 
such conduct, this enhancement will apply and increase the offense 
level for the underlying offense (i.e., the offense with respect to 
which the obstructive conduct occurred). See Application Note 7, below.
    The following is a non-exhaustive list of examples of the types of 
conduct to which this application note applies:''.
    The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is 
amended in Note 6 in the second sentence by inserting ``(the offense 
with respect to which the obstructive conduct occurred),'' immediately 
before ``the count for the obstruction'' and by redesignating as new 
Note 7 the second and third sentences.
    The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is 
amended by redesignating Note 7 as Note 8.

Section 3E1.1  Acceptance of Responsibility

    24. Synopsis of Proposed Amendment: This amendment revises 
Sec. 3E1.1 (Acceptance of Responsibility) in a number of key respects 
to provide greater flexibility to the sentencing judge in determining 
whether a defendant qualifies for a reduction in sentence, particularly 
the additional one-level reduction in subsection (b), based on the 
defendant's acceptance of responsibility. First, this amendment 
eliminates many of the considerations currently listed as appropriate 
to consider in determining whether the defendant qualifies for the two-
level reduction under subsection (a), reserving many of those 
considerations for a determination of whether the defendant qualifies 
for the additional one-level reduction under subsection (b).
    Second, this amendment conditions receipt of the two-level 
reduction on the timeliness of the defendant's admission of conduct 
comprising the offense of conviction, the defendant's admission or 
failure to falsely deny relevant conduct, and the defendant's not 
having committed, after filing of charges on the instant offense, 
conduct that, under the totality of the circumstances, negates an 
inference of acceptance of responsibility. Therefore, obstructive 
conduct does not automatically preclude receipt of the two-level 
reduction if the totality of the circumstances indicate that the 
defendant has accepted responsibility for the offense.
    Third, this amendment provides for an additional one-level 
reduction if the defendant qualifies for the two-level reduction and 
the defendant has demonstrated extraordinary acceptance of 
responsibility, based on the sentencing judge's consideration of a 
variety of considerations, including those listed in Application Note 
2, as well as the sentencing judge's consideration of the totality of 
the circumstances. Finally, the amendment provides a number of options 
with respect to whether the commission of obstructive conduct or a new 
offense should disqualify the defendant from receiving the additional 
one-level reduction.
    Proposed Amendment: Section 3E1.1 is amended by deleting it in its 
entirety and inserting in lieu thereof:

``Sec. 3E1.1.  Acceptance of Responsibility

    (a) If the defendant demonstrates acceptance of responsibility for 
his offense, decrease the offense level by 2 levels.
    (b) If the defendant qualifies for a decrease under subsection (a), 
the offense level determined prior to the operation of subsection (a) 
is level 16 or greater, and the defendant clearly demonstrates 
extraordinary acceptance of responsibility, decrease the offense level 
by 1 additional level.
Commentary
Application Notes
    1. A defendant qualifies under subsection (a), if the defendant:
    (a) Truthfully admits, in a timely manner, the conduct comprising 
the offense(s) of conviction, and truthfully admits or does not falsely 
deny any additional relevant conduct for which the defendant is 
accountable under Sec. 1B1.3 (Relevant Conduct). Note that a defendant 
is not required to volunteer, or affirmatively admit, relevant conduct 
beyond the offense of conviction in order to obtain a reduction under 
subsection (a). A defendant may remain silent in respect to relevant 
conduct beyond the offense of conviction without affecting his ability 
to obtain a reduction under this subsection. However, a defendant who 
falsely denies, or frivolously contests, relevant conduct that the 
court determines to be true has acted in a manner inconsistent with 
acceptance of responsibility; and
    (b) Has not, after the filing of charges on the instant offense, 
committed conduct that, under the totality of the circumstances, 
negates an inference of acceptance of responsibility. Conduct that may 
negate an inference of acceptance of responsibility under this 
paragraph is (1) conduct resulting in an enhancement under Sec. 3C1.1 
(Obstructing or Impeding the Administration of Justice), i.e., 
obstructive conduct, or (2) the commission of an offense by the 
defendant. Such conduct does not necessarily disqualify the defendant 
from receiving a reduction in offense level under this section. In 
determining whether such conduct disqualifies the defendant from 
receiving a reduction in offense level under this section, the court 
should consider the nature, seriousness, and timing of the conduct, as 
well as the extent to which commission of the conduct is inconsistent 
with acceptance of responsibility.
    2. In the case in which the defendant qualifies for the 2-level 
reduction under subsection (a) and the offense level determined prior 
to the operation of subsection (a) is level 16 or greater, the court 
may grant an additional 1-level reduction under subsection (b) if the 
court determines, under the totality of the circumstances, that the 
defendant has clearly demonstrated extraordinary acceptance of 
responsibility. The sentencing judge is in a unique position to make 
this determination. For this reason, this determination is entitled to 
great deference on review. In determining whether the defendant has 
clearly demonstrated extraordinary acceptance of responsibility for 
purposes of subsection (b), appropriate considerations include the 
following:
    (a) Fully cooperating with the probation officer in the preparation 
of the presentence report.

    Note: This includes appearing for interview as required, 
providing accurate background information, including information 
regarding the defendant's juvenile and adult criminal record, and 
providing complete financial information as requested, in a timely 
fashion. With respect to discussion of the offense of conviction and

[[Page 180]]

relevant conduct, the provisions set forth in Application Note 1(a) 
above control.

    (b) Timely notifying authorities of his intention to enter a plea 
of guilty, in a sufficiently prompt manner to permit the government to 
avoid preparing for trial and to permit the court to allocate its 
resources efficiently.

    Note: The notification to authorities of the intention to plead 
guilty should occur particularly early in the case. For example, a 
defendant who pleads guilty one day before his scheduled trial date 
may qualify under subsection (a), but such plea will not ordinarily 
be timely enough to constitute an indicia of extraordinary 
acceptance of responsibility under this paragraph.

    [(c) Voluntary termination or withdrawal from criminal conduct or 
associations;]
    [(d) Voluntary payment of restitution prior to adjudication of 
guilt;]
    [(e) Voluntary surrender to authorities promptly after commission 
of the offense;]
    [(f) Voluntary assistance to authorities in the recovery of the 
fruits and instrumentalities of the offense;]
    [(g) Voluntary resignation from the office or position held during 
the commission of the offense;]
    [(h) Post-offense rehabilitative efforts (e.g., counseling or drug 
treatment); and]
    [(i) Voluntary stipulation to administrative deportation, in the 
case of a deportable alien].
    The defendant may qualify for the additional 1-level decrease under 
subsection (b) without satisfying all of the factors listed in this 
Application Note. However, satisfaction by the defendant of one or more 
of the factors listed in this Application Note will not be sufficient 
under subsection (b) if the court determines that, under the totality 
of the circumstances, the defendant has not clearly demonstrated 
extraordinary acceptance of responsibility.
    A defendant who, after the filing of charges on the instant 
offense, commits obstructive conduct or a new offense [may not receive 
the additional 1-level decrease under subsection (b)] [ordinarily will 
not qualify for the additional 1-level decrease under subsection (b)] 
[will qualify for the additional 1-level decrease under subsection (b) 
only in an extraordinary case].
    3. A reduction in offense level under this section is not intended 
to apply to a defendant who puts the government to its burden of proof 
at trial by denying the essential factual elements of guilt, is 
convicted, and only then admits guilt and expresses remorse. Conviction 
by trial, however, does not automatically preclude a defendant from 
consideration for such a reduction. In rare situations a defendant may 
clearly demonstrate an acceptance of responsibility for his criminal 
conduct even though he exercises his constitutional right to a trial. 
This may occur, for example, where a defendant goes to trial to assert 
and preserve issues that do not relate to factual guilt (e.g., to make 
a constitutional challenge to a statute or a challenge to the 
applicability of a statute to his conduct). In each such instance, 
however, a determination that a defendant has accepted responsibility 
will be based primarily upon pre-trial statements and conduct.
    Background: Subsection (a) provides a 2-level decrease in offense 
level. Subsection (b) provides an additional 1-level decrease for a 
defendant at offense level 16 or greater prior to operation of 
subsection (a) who both qualifies for a decrease under subsection (a) 
and clearly demonstrates extraordinary acceptance of responsibility 
based on the factors listed in Application Note 2 or equivalent 
factors. Subsection (b) does not apply, however, to a defendant whose 
offense level is level 15 or lower prior to application of subsection 
(a). The reduction in the guideline range provided by a 2-level 
decrease in offense level under subsection (a) is sufficient at offense 
level 15 or lower because the 2-level decrease provides a greater 
proportional reduction in the guideline range than at higher offense 
levels due to the structure of the Sentencing Table.
    The reduction of offense level provided by this section recognizes 
legitimate societal interests. A defendant who timely demonstrates 
acceptance of responsibility for his offense is appropriately given a 
lower offense level than a defendant who has not demonstrated 
acceptance of responsibility. A defendant who further demonstrates 
extraordinary acceptance of responsibility is likewise deserving of 
additional recognition of his extraordinary acceptance.''.

Section 3E1.1  Acceptance of Responsibility

    25. Synopsis of Proposed Amendment: This amendment clarifies that 
the commission of a new offense while pending trial or sentencing on 
the instant offense is a negative indicant of acceptance of 
responsibility. This provision does not require that the new offense be 
related or similar to the instant offense. Currently, there is a 
circuit split on this issue. Compare United States v. Morrison, 983 
F.2d 730 (6th Cir. 1993)(consideration of post- indictment theft and 
positive drug test inappropriate in determining whether defendant 
accepted responsibility for firearms violations) with, e.g., United 
States v. Watkins, 911 F.2d 983 (5th Cir. 1990)(upholding denial of 
acceptance for defendant convicted of possessing stolen treasury checks 
who used cocaine pending sentencing).
    Proposed Amendment: The Commentary to Sec. 3E1.1 captioned 
``Application Notes'' is amended in Note 4 by inserting the following 
as the last sentence:
    ``Similarly, the commission of an offense by the defendant while 
pending trial or sentencing on the instant offense, whether or not that 
offense is similar to the instant offense, ordinarily indicates that 
the defendant has not accepted responsibility for the instant 
offense.''.

Section 3E1.1  Acceptance of Responsibility

    26. Synopsis of Proposed Amendment: This amendment revises 
Sec. 3E1.1 (Acceptance of Responsibility) to remove the restriction 
that currently prohibits the application of the additional 1-level 
decrease in subsection (b) for offense levels 15 and lower. This 
amendment would allow consideration of the additional 1-level decrease 
for defendants at all offense levels. Consequently, eligibility for 
alternatives to incarceration would be increased for defendants at 
offense levels of 15 or less who receive a 3 level reduction for 
acceptance of responsibility.
    Proposed Amendment: Section 3E1.1(b) is amended by deleting ``the 
offense level determined prior to the operation of subsection (a) is 
level 16 or greater, and the defendant'' and inserting in lieu thereof 
``and''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 6 by deleting ``at offense level 16 or greater prior to 
the operation of subsection (a)''.
    The Commentary to Sec. 3E1.1 captioned ``Background'' is amended in 
the second paragraph by deleting ``at offense level 16 or greater prior 
to operation of subsection (a)''; and by deleting ``Subsection (b) does 
not apply, however, to a defendant whose offense level is level 15 or 
lower prior to application of subsection (a). At offense level 15 or 
lower, the reduction in the guideline range provided by a 2-level 
decrease in offense level under subsection (a) (which is a greater 
proportional reduction in the guideline range than at higher offense 
levels due to the structure of the Sentencing Table) is adequate for 
the court to take into account the factors set forth in

[[Page 181]]

subsection (b) within the applicable guideline range.''.
    Section 4B1.3 is amended by deleting ``13, unless Sec. 3E1.1 
(Acceptance of Responsibility) applies, in which event his offense 
level shall be not less than 11'' and inserting ``level 13 (decreased 
by any applicable adjustment from Sec. 3E1.1 (Acceptance of 
Responsibility)).''.

Section 4B1.2  Definitions of Terms Used in Section 4B1.1

    27. Synopsis of Proposed Amendment: This amendment resolves a 
circuit conflict with respect to definitions of terms used in the 
Chapter Four career offender guideline and addresses several related 
issues.
    (1) Miscellaneous Controlled Substance Offenses--This amendment 
addresses the question of whether the offenses of possessing a listed 
chemical with intent to manufacture a controlled substance or 
possessing a prohibited flask or equipment with intent to manufacture a 
controlled substance are ``controlled substance offenses'' under the 
career offender guideline. A panel of the Fifth Circuit concluded that 
possession of a listed chemical with intent to manufacture a controlled 
substance is a controlled substance offense under Sec. 4B1.2. U.S. v. 
Calverley, 11 F.3d 505 (5th Cir. 1993). (The panel questioned the 
precedent on which the decision was based and recommended 
reconsideration en banc; on reconsideration en banc, the Fifth Circuit 
declined to address the merits of the issue.) In contrast, the Tenth 
Circuit has concluded that possession of a listed chemical with intent 
to manufacture a controlled substance is not a controlled substance 
offense. United States v. Wagner, 994 F.2d 1467, 1475 (10th Cir. 1993). 
This amendment makes such offenses a ``controlled substance offense'' 
under the career offender guideline. There seems such an inherent 
connection between possession of a listed chemical or prohibited flask 
or equipment with intent to manufacture a controlled substance and 
actually manufacturing a controlled substance that the former offenses 
are fairly considered as controlled substance trafficking offenses.
    (2) Additional Related Issues--The first related issue is whether 
the Commission should amend Sec. 4B1.2 to clarify that certain offenses 
are ``crimes of violence'' or ``controlled substance offenses'' if the 
offense of conviction established that the underlying offense was a 
``crime of violence'' or ``controlled substance offense.'' See United 
States v. Baker, 16 F.3d 854 (8th Cir. 1994); United States v. Vea-
Gonzalez, 999 F.2d 1326 (9th Cir. 1993), effectively overruled on other 
grounds by Custis v. United States, 114 S.Ct. 1732 (1994).
    The second issue is whether to make the following nonsubstantive 
changes to Sec. 4B1.2 to improve the internal consistency of the 
guidelines: (A) adding the phrase ``punishable by imprisonment for a 
term exceeding one year'' in subsection (2) to make it consistent with 
subsection (1); and (B) conforming the second paragraph of Application 
Note 2 of Sec. 4B1.2 to the language of Secs. 2K1.3 and 2K2.1.
    Proposed Amendment: Section Sec. 4B1.2(1) is amended by inserting a 
``,'' immediately after ``state law'' and immediately after ``one 
year'';
    By redesignating ``Sec. 4B1.2(1)'' as ``Sec. 4B1.2(a)''; by 
redesignating ``(i)'' as ``(1)'' and redesignating ``(ii)'' as ``(2)''.
    Section Sec. 4B1.2(2) is amended by deleting ``a'' immediately 
after ``under'';
    By deleting ``prohibiting'' and inserting in lieu thereof ``, 
punishable by imprisonment for a term exceeding one year, that 
prohibits'' and by redesignating ``(2)'' as ``(b)''.
    Section Sec. 4B1.2(3) is amended by redesignating ``(A)'' as 
``(1)'', redesignating ``(B)'' as ``(2)'' and by redesignating 
``Sec. 4B1.2(3)'' as ``Sec. 4B1.2(c)''.
    The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting at the beginning ``For purposes of this 
guideline-'';
    By deleting ``The terms `crime' '' and inserting in lieu thereof `` 
`Crime' ''.
    The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is 
amended in Note 2 by deleting in the second sentence ``whereas'' 
immediately following ``included'' and inserting in lieu thereof ``as 
`crimes of violence' if'';
    By deleting the last sentence from the first paragraph;
    By deleting from the first sentence of the second paragraph ``The 
term `crime' '' and inserting in lieu thereof `` `Crime' '';
    By deleting in the second sentence of the second paragraph ``has'' 
immediately following ``if the defendant'' and inserting in lieu 
thereof ``had'';
    And by inserting at the end the following:
    ``Unlawfully possessing a listed chemical with intent to 
manufacture a controlled substance (21 U.S.C. Sec. 841(d)(1)) is a 
`controlled substance offense.'
    Unlawfully possessing a prohibited flask or equipment with intent 
to manufacture a controlled substance (21 U.S.C. Sec. 843(a)(6)) is a 
`controlled substance offense.'
    Maintaining any place for the purpose of facilitating a drug 
offense (21 U.S.C. Sec. 856) is a `controlled substance offense' if the 
offense of conviction established that the underlying offense (the 
offense facilitated) was a `controlled substance offense.'
    Using a communications facility in committing, causing, or 
facilitating a drug offense (21 U.S.C. Sec. 843(b)) is a `controlled 
substance offense' if the offense of conviction established that the 
underlying offense (the offense committed, caused, or facilitated) was 
a `controlled substance offense.'
    Possessing a firearm during and in relation to a crime of violence 
or drug offense (18 U.S.C. Sec. 924(c)) is a `crime of violence' or 
`controlled substance offense' if the offense of conviction established 
that the underlying offense (the offense during and in relation to 
which the firearm was carried or possessed) was a `crime of violence' 
or `controlled substance offense.' Note that if the defendant also was 
convicted of the underlying offense, the two convictions will be 
treated as related cases under Sec. 4A1.2 (Definitions and Instruction 
for Computing Criminal History)).''.
    The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is 
amended by deleting the numbers corresponding to Notes ``2'' and ``3''; 
and by inserting the following as new Note 2:
    ``2. Section 4B1.1 (Career Offender) expressly provides that the 
instant and prior offenses must be crimes of violence or controlled 
substance offenses of which the defendant was convicted. Therefore, in 
determining whether an offense is a crime of violence or controlled 
substance for the purposes of Sec. 4B1.1 (Career Offender), the offense 
of conviction (i.e., the conduct of which the defendant was convicted) 
is the focus of inquiry.''.
    The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is 
amended by redesignating Note 4 as Note 3.
    28. Issue for Comment: The Commission requests public comment on 
whether, and in what manner, it should address by amendment the 
following circuit court conflicts:
    (1) Whether an upward departure may be based on dismissed or 
uncharged conduct that is related to the offense of conviction but is 
not relevant conduct. Compare United States v. Figaro, 935 F.2d 4 (1st 
Cir. 1991) (permitting consideration of uncharged conduct related to 
the offense of conviction); United States v. Kim, 896 F.2d 678 (2d Cir. 
1990) with United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992) (court 
cannot consider uncharged conduct).
    (2) Whether information provided in connection with a Sec. 1B1.8 
agreement

[[Page 182]]

may be placed in the presentence report or used to affect conditions of 
confinement. (Amendment would implicate Sec. 1B1.8 (Use of Certain 
Information).) Compare United States v. Marsh, 963 F.2d 72, 74 (5th 
Cir.1992) (implying court may receive information); United States v. 
Malvito, 946 F.2d 1066, 1068 (4th Cir.1991) (same) with United States 
v. Abanatha, 999 F.2d 1246, 1249 (8th Cir. 1993), cert. denied 114 
S.Ct. 1549 (1994) (information should not be included in PSR because 
the Fifth Amendment precludes information from being considered at 
sentencing or allowed to affect conditions of confinement).
    (3) Whether drug quantities possessed for personal use should be 
aggregated with quantities distributed or possessed with intent to 
distribute. (Amendment would implicate Sec. 1B1.3 and Sec. 2D1.1.) 
Compare United States v. Antonietti, 86 F.3d 206, 209 (11th Cir.); 
United States v. Innamorati, 996 F.2d 456, 492 (1st Cir. 1993), cert. 
denied, 510 U.S. 955 (1993) with United States v. Rodriquez-Sanchez, 23 
F.3d 1488 (9th Cir. 1994) (personal use amounts are not same course of 
conduct as quantities possessed for distribution).
    (4) Whether a federal prison camp is a ``similar facility'' under 
Sec. 2P1.1(b)(3). Compare United States v. Hillstrom, 988 F.2d 448 (3d 
Cir. 1993), cert. denied, 115 S. Ct. 1382 (1995) with United States v. 
Sarno, 24 F.3d 618 (4th Cir. 1994) (minimum security prison is a secure 
facility); United States v. Tapia, 981 F.2d 1194 (11th Cir.), cert. 
denied, 113 S. Ct. 2979 (1993). (Although the Third Circuit initially 
disagreed with the Fourth, Fifth, Ninth, Tenth, and Eleventh circuits, 
the district court on remand held that a federal prison camp is not a 
``similar facility'' within the meaning of the escape guideline. United 
States v. Hillstrom, 837 F.Supp. 1324 (M.D.Pa. 1993); aff'd, 37 F.3d 
1490 (unpublished).).
    (5) Whether the two-level enhancement at Sec. 2F1.1(b)(3)(A) 
requires that the defendant misrepresent his authority to act on behalf 
of a charitable or governmental organization. Compare United States v. 
Frazier, 53 F.3d 1105, 1123-13 (10th Cir. 1995) (enhancement does not 
apply to chairman of educational organization who misapplied funds 
because he made no misrepresentation of his authority to act on behalf 
of the organization) with United States v. Marcum, 16 F.3d 599, 603 
(4th Cir. ), cert. denied, 115 S. Ct. 137 (1994) (applying enhancement 
to president of charitable organization who embezzled fund from the 
organization).
    (6) Whether ``victim of the offense'' under Sec. 3A1.1 refers only 
to victim of the offense of conviction or to victim of any relevant 
conduct. Compare United States v. Echevarria, 33 F.3d 175 (2d Cri. 
1994) (vulnerable victim need not be victim of the offense of 
conviction); United States v. Roberson, 872 F.2d 597 (5th Cir. ), cert. 
denied, 493 U.S. 961 (1989) with United States v. Dixon, 66 F.3d 133 
(6th Cir. 1995); United States v. Wright, 12 F.3d 70 (6th Cir. 1993), 
cert. denied 116 S. Ct. 320 (1995).
    (7) Whether a defendant's failure to admit to use of a controlled 
substance amounts to willful and material obstruction of justice under 
Sec. 3C1.1 (Obstruction of Justice). Compare United States v. Garcia, 
20 F.3d 670 (6th Cir. 1994), cert. denied, 115 S. Ct. 1120 (1995) with 
United States v. Belletiere, 971 F.2d 961 (3d Cir. 1992); United States 
v. Thompson, 944 F.2d 1331 (7th Cir. 1991), cert. denied, 502 U.S. 1097 
(1992).
    (8) Whether time in a community treatment center is a ``sentence of 
imprisonment'' under Sec. 4A1.2(e)(1). Compare United States v. Rasco, 
963 F.2d 132 (6th Cir.), cert. denied 113 S. Ct. 238 (1992) (detention 
in community treatment facility following revocation of parole is 
``incarceration''); United States v. Vanderlaan, 921 F.2d 257 (10th 
Cir. 1990), cert. denied, 499 U.S. 954 (1991) (placement in federal 
special treatment facility during period of commitment to federal 
prison is confinement and is considered ``sentence of imprisonment'') 
with United States v. Latimer, 991 F.2d 1509 (9th Cir. 1993) (placement 
in community treatment facility following revocation of parole is not 
considered ``incarceration''); United States v. Urbizu, 4 F.3d 636 (8th 
Cir. 1993) (dicta) (placement in halfway house not categorized as 
confinement).
    (9) Whether convictions that are erased for reasons unrelated to 
innocence or errors of law (regardless of whether they are termed by 
statute as ``set aside'' or ``expunged'') should be counted for 
purposes of criminal history. (Amendment would implicate Sec. 4A1.2, 
comment. n. 10). Compare United States v. McDonald, 991 f.2d 866 (D.C. 
Cir. 1993) (examining effect of set aside D.C. Youth Rehabilitation Act 
conviction and noting it is automatic and unrelated to innocence) with 
United States v. Beaulieau, 959 F.2d 375 (2d Cir. 1992) (do not count 
conviction where Vermont set aside statute intended to erase conviction 
from record; such a set aside is equivalent to expungement); United 
States v. Hidalgo, 932 F.2d 805 (9th Cir. 1991) (do not count 
conviction subject to California Youth Act set aside provision 
releasing youth from all penalties and disabilities; treat as an 
expungement provision).
    (10) Whether a court may impose a fine for costs of imprisonment 
under Sec. 5E1.2(c). Compare United States v. Sellers, 42 F.3d 116 (2d 
Cir. 1994), cert. denied, 116 S. Ct. 93 (1995) (Sec. 5E1.2 does not 
require district court to impose a punitive fine in order to impose a 
fine for costs of imprisonment); United States v. Turner, 998 F.2d 534 
(7th Cir.), cert. denied, 114 S. Ct. 639 (1993) with United States v. 
Corral, 964 F.2d 83 (1st Cir. 1992) (court cannot impose fine for cost 
of imprisonment when defendant is indigent); United States v. Labat, 
915 F.2d 603 (10th Cir. 1990) (cost of imprisonment is additional fine 
that cannot be imposed unless court first imposes a punitive fine).
    (11) Whether a departure above a statutorily required minimum 
sentence should be measured from a defendant's guideline range or the 
applicable mandatory minimum. (Amendment would implicate Secs. 5G1.1, 
5K2.0, 4A1.3.) Compare United States v. Carpenter, 963 F.2d 736 (5th 
Cir. 1992) (appropriate for court to depart upwards from the range 
within which the mandatory minimum falls); United States v. Doucette. 
979 F.2d 1042, 1047 (5th Cir. 1992) with United States v. Rodriguez-
Martinez, 25 F.3d 797 (9th Cir. 1994) ( if the court determines that a 
departure above a mandatory minimum is warranted, it should calculate 
the departure from the defendant's guideline range).
    (12) Whether the district court can depart to the career offender 
level based on the defendant's criminal history, although the defendant 
does not otherwise qualify for the career offender enhancement. Compare 
United States v. Ruffin, 997 F.2d 343, 347 (7th Cir. 1993)(``Only real 
convictions support a sentence under Sec. 4B1.1.''); United States v. 
Faulkner, 952 F.2d 1066, 1072-73(9th Cir. 1991)(career offender 
guidelines operate as an ``on/off'' switch and cannot be used for 
departure purposes if defendant does not qualify as a career offender) 
with United States v. Cash, 983 F.2d 558, 562 (4th Cir. 1992)(departure 
reasonable when defendant would be career offender but for 
constitutional invalidity of one prior conviction; Sec. 4A1.3's level 
by level consideration is implicit in the departure); United States v. 
Hines, 943 F.2d 348, 354-55 (4th Cir. 1991)(departure reasonable when 
defendant's two prior murder convictions were consolidated for 
sentencing).
    (13) Whether multiple criminal incidents occurring over a period of 
time may constitute a single act of

[[Page 183]]

aberrant behavior warranting departure. Compare United States v. 
Grandmaison, 77 F.3d 555 (1st Cir. 1996) (includes multiple acts 
leading up to the defendant's commission of the offense); United States 
v. Takai, 941 F.2d 738 (9th Cir. 1991) (multiple incidents over six-
week period can be ``single act of aberrant behavior'') with United 
States v. Marcello, 13 F.3d 752 (3d Cir. 1994) (requires spontaneous, 
thoughtless, single act involving lack of planning); United States v. 
Williams, 974 F.2d 25 (5th Cir. 1992), cert. denied, 507 U.S. 934 
(1993) (same).
    (14) Whether collateral consequences of a defendant's conviction 
can be the basis of a downward departure. Compare United States v. 
Smith, 27 F.3d 649 (D.C. Cir. 1994) (objectively more serious prison 
conditions faced by deportable aliens may warrant downward departure) 
with United States v. Sharapan, 13 F.3d 781 (3d Cir. 1994) (demise of 
defendant's business, employees' loss of jobs, and economic harm do not 
support downward departure); United States v. Restreppo, 999 F.2d 640 
(2d Cir.), cert. denied, 114 S. Ct. 405 (1993) (disallowing departure 
based on collateral consequences of being a deportable alien).
    (15) Whether the definition of ``violent offense'' under 
Sec. 5K2.13 (Diminished Capacity) is the same as ``crime of violence'' 
under Sec. 4B1.2. Compare United States v. Poff, 926 F.2d 588 (7th 
Cir.), cert. denied, 502 U.S. 827 (1991); United States v. Maddalena, 
893 F.2d 815 (6th Cir. 1990), cert. denied, 502 U.S. 882 (1991) with 
United States v. Weddle, 30 F.3d 532 (4th Cir. 1994); United States v. 
Chatman, 986 F.2d 1446 (D.C. Cir. 1993)

Section 5B1.3  Conditions of Probation

    29(A). Synopsis of Proposed Amendment: This amendment revises 
Secs. 5B1.3, 5B1.4, and 5D1.3 to reflect required conditions of 
probation and supervised release that have been added by the 
Antiterrorism and Effective Death Penalty Act of 1996 and other 
statutory provisions. Section 5B1.4 is amended to list both statutorily 
required and discretionary conditions in a way that will facilitate 
their application in individual cases.
    Proposed Amendment: Section 5B1.3(a) is amended by deleting:
    ``(a) If a term of probation is imposed, the court shall impose a 
condition that the defendant shall not commit another federal, state, 
or local crime during the term of probation. 18 U.S.C. Sec. 3563(a)(1). 
The court shall also impose a condition that the defendant not possess 
illegal controlled substances. 18 U.S.C. Sec. 3563(a)(3).''
    And inserting in lieu thereof:
    ``(a) If a term of probation is imposed, the court is required by 
statute to impose the following conditions:
    (1) That the defendant not commit another federal, state, or local 
crime during the term of probation. 18 U.S.C. Sec. 3563(a)(1). This 
condition is reflected in Sec. 5B1.4(a) (condition #1);
    (2) That the defendant not unlawfully possess a controlled 
substance. 18 U.S.C. Sec. 3563(a)(3). This condition is reflected in a 
broader form in Sec. 5B1.4(a) (condition #8);
    (3) In the case of a defendant convicted for the first time of a 
domestic violence crime, as defined in 18 U.S.C. Sec. 3561(b), that the 
defendant attend a public, private, or private nonprofit offender 
rehabilitation program that has been approved by the court, in 
consultation with the State Coalition Against Domestic Violence or 
other appropriate experts, if an approved program is readily available 
within a 50-mile radius of the legal residence of the defendant. 18 
U.S.C. Sec. 3563(a)(4). This condition is reflected in a broader form 
in Sec. 5B1.4(b) (condition #25);
    (4) That the defendant refrain from any unlawful use of a 
controlled substance and submit to one drug test within 15 days of 
release on probation and at least two periodic drug tests thereafter 
(as determined by the court) for use of a controlled substance, but the 
condition stated in this paragraph may be ameliorated or suspended by 
the court for any individual defendant if the defendant's presentence 
report or other reliable sentencing information indicates a low risk of 
future substance abuse by the defendant. 18 U.S.C. Sec. 3563(a)(5). 
This condition is reflected in a broader form in Sec. 5B1.4(a) 
(condition #8) and Sec. 5B1.4(b) (conditions #22 and #23);
    (5) That the defendant make restitution in accordance with 18 
U.S.C. Secs. 2248, 2259, 2264, 2327, 3663, 3663A, and 3664. 18 U.S.C. 
Sec. 3563(a)(6)(A). This condition is reflected in a broader form in 
Sec. 5B1.4(b) (condition #18);
    (6) That the defendant pay the special assessment imposed under 18 
U.S.C. Sec. 3013. 18 U.S.C. Sec. 3563(a)(6)(B). This condition is 
reflected in Sec. 5B1.4(a) (condition #15);
    (7) That the defendant notify the court of any material change in 
the defendant's economic circumstances that might affect the 
defendant's ability to pay restitution, fines, or special assessments. 
18 U.S.C. Sec. 3563(a)(7). This condition is reflected in Sec. 5B1.4(a) 
(condition #16);
    (8) If the court has imposed a fine, that the defendant pay the 
fine or adhere to a court-established installment schedule. 18 U.S.C. 
Sec. 3563(a). This condition is reflected in Sec. 5B1.4(b) (condition 
#19).''.
    Section 5B1.3(b) is renumbered as Sec. 5B1.3(c); and Sec. 5B1.3(c) 
is renumbered as Sec. 5B1.3(b).
    Section 5B1.3(b) (formerly (c)) is amended by deleting ``a fine,''; 
and by inserting ``(pertaining to discretionary conditions of 
probation)'' immediately after ``3563(b)''.
    Section 5B1.3(c) (formerly (b)) is amended by deleting 
``Recommended conditions are set forth in Sec. 5B1.4.''.
    Section 5B1.3(d) is amended by inserting at the ``This condition is 
reflected in Sec. 5B1.4(c) (condition #31).''.
    Section 5B1.3 is amended by inserting after subsection (d) the 
following new subsection:
    ``(e) Recommended conditions of probation are set forth in 
Sec. 5B1.4 (Recommended Conditions of Probation and Supervised 
Release).''.
    The Commentary to Sec. 5B1.3 is deleted in its entirety, including 
the title.
    Section 5B1.4(a) is amended by deleting ``(1-13)''; by deleting 
``generally''; by deleting ``:'' and inserting in lieu thereof ``.'' 
and by inserting at the end the following ``A condition (or a part of a 
condition) designated by an asterisk may be statutorily required in all 
or some cases:''.
    Section 5B1.4(a) is amended by renumbering subdivisions (1) through 
(13) as subdivisions (2) through (14), respectively; and by inserting 
before subdivision (2) (formerly (a)(1)) the following: ``(1) the 
defendant shall not commit another federal, state, or local crime;*''
    Section 5B1.4(a)(5) (formerly (a)(4)) is amended by deleting 
``his'' and inserting in lieu thereof ``the defendant's''; and by 
inserting immediately following ``responsibilities'' the following: 
``(including, but not limited to, complying with the terms of any court 
order or administrative process pursuant to the law of a state, the 
District of Columbia, or any other possession or territory of the 
United States requiring payments by the defendant for the support and 
maintenance of any child or of a child and the parent with whom the 
child is living)''.
    Section 5B1.4(a)(7) (formerly (a)(6)) is amended by deleting 
``within seventy-two hours of'' and inserting in lieu thereof ``at 
least ten days prior to''; and by deleting ``in'' and inserting in lieu 
thereof ``of''.
    Section 5B1.4(a)(8) (formerly (a)(7)) is amended by deleting 
``narcotic or other''; by deleting ``such'' and inserting

[[Page 184]]

in lieu thereof ``any controlled''; by deleting ``substance'' and 
inserting in lieu thereof ``substances''; and by inserting an asterisk 
immediately following ``physician;''.
    Section 5B1.4(a)(11) (formerly (a)(10)) is amended by deleting 
``him'' and inserting in lieu thereof ``the defendant''.
    Section 5B1.4(a)(14) (formerly (a)(13)) is amended by deleting 
``.'' at the end and inserting in lieu thereof ``;''.
    Section 5B1.4(a) is amended by inserting at the end the following 
new subdivisions (15) and (16):
    ``(15) The defendant shall pay the special assessment imposed or 
adhere to a court-ordered installment schedule for the payment of the 
special assessment;*
    (16) The defendant shall notify the probation officer of any 
material change in the defendant's economic circumstances that might 
affect the defendant's ability to pay any unpaid amount of restitution, 
fines, or special assessments.*''.
    Section 5B1.4(b) is amended by deleting in the first sentence 
``(14-24)''; by deleting ``either''; by deleting ``or required by law 
under'' and inserting in lieu thereof ``in''; by deleting ``, or may be 
appropriate in a particular case'' and inserting in lieu thereof ``and, 
in addition, may otherwise be appropriate in particular cases. A 
condition (or a part of a condition) designated by an asterisk may be 
statutorily required in all or some cases''; and by renumbering 
subdivisions (14) through (18) as (17) through (21) respectively; by 
renumbering subdivisions (19) through (22) as (26) through (29), 
respectively; and by renumbering subdivision (23) as subdivision (22); 
and by renumbering subdivision (25) as subdivision (30).
    Section 5B1.4(b)(17) (formerly (b)(14)) is amended by deleting ``, 
it is recommended that the court impose'' and inserting in lieu thereof 
``--''.
    Section 5B1.4(b)(18) (formerly (b)(15)) is amended by deleting 
``of'' immediately following ``order'' and inserting in lieu thereof 
``or condition requiring''; by deleting '' it is recommended that the 
court impose'' and inserting in lieu thereof ``--''; by deleting ``See 
Sec. 5E1.1 (Restitution).'' and by inserting in lieu thereof an 
asterisk; ; and by inserting at the end the following new paragraph:
    ``If any restitution obligation remains unpaid at the commencement 
of a term of supervised release, it shall be a condition of supervised 
release that the defendant pay any such restitution in accordance with 
the schedule of payments ordered by the court.''.
    Section 5B1.4(b)(19) (formerly (b)(16)) is amended by deleting ``, 
it is recommended that the court impose'' and inserting in lieu thereof 
``--''; by inserting an asterisk after ``the fine.''; and by adding at 
the end the following new paragraph:
    ``If any fine obligation remains unpaid at the commencement of a 
term of supervised release, it shall be a condition of supervised 
release that the defendant pay any such fine in accordance with the 
schedule of payments ordered by the court.''
    Section 5B1.4(b) is amended by inserting after subdivision (22) 
(formerly subdivison (b)(23)) the following new subdivision (23):
    ``(23) Drug Testing.
    Unless the court determines that there is a low risk of future 
substance abuse by the defendant--a condition requiring the defendant 
to submit to one drug test within fifteen days of release on 
[probation][supervised release] and at least two periodic drug tests 
thereafter, as determined by the court.*

    Note: This condition is not necessary if the substance abuse 
program participation condition (condition #22) is imposed.''.

    Section 5B1.4(b)(20) (formerly (b)(17)) is amended by deleting ``, 
it is recommended that the court impose'' and inserting in lieu thereof 
``----''.
    Section 5B1.4(b)(21) (formerly (b)(18)) is amended by deleting ``, 
it is recommended that the court impose'' and inserting in lieu thereof 
``----''.
    Section 5B1.4(b)(22) (formerly (b)(23)) is amended by deleting ``, 
it is recommended that the court impose'' and inserting in lieu thereof 
``--''.
    Section 5B1.4(b)(24) is amended by deleting ``, it is recommended 
that the court impose'' and inserting in lieu thereof ``----''.
    Section 5B1.4(b) is amended by inserting the following as new 
subdivision (25):
    ``(25) Domestic Violence Program Participation.
    In the case of a defendant convicted of a domestic violence crime, 
as defined in 18 U.S.C. Sec. 3561(b), a condition requiring the 
defendant to attend a public, private, or private nonprofit offender 
rehabilitation program that has been approved by the court, in 
consultation with the State Coalition Against Domestic Violence or 
other appropriate experts, if an approved program is readily available 
within a 50-mile radius of the legal residence of the defendant.*''
    Section 5B1.4 is amended by inserting the following immediately 
after new subdivision (25);
    ``(c) Additional Conditions.
    The following ``special conditions'' may be appropriate on a case-
by-case basis:''
    Section 5B1.4 (c)(30) (formerly (b)(25)) is amended by deleting 
``If'' and inserting in lieu thereof ``A condition imposing a curfew 
may be imposed if''; and by deleting ``, a condition of curfew is 
recommended''.
    Section 5B1.4 is amended by inserting after subdivision (30) 
(formerly subdivision (b)(25)) the following new subdivision:
    ``(31) Intermittent Confinement
    Intermittant confinement (custody for intervals of time) may be 
ordered as a condition of probation during the first year of probation.

    Note: This condition may not be order as a condition of 
supervised release.''.

    The commentary to 5B1.4 captioned ``Application Note'' is amended 
in Note 1 by deleting ``his'' wherever it appears and inserting in lieu 
thereof ``the defendant's''; and by inserting in the last sentence a 
comma immediately following ``home detention''.
    Section 5D1.3 is amended by deleting subsection (a) in its entirety 
and inserting in lieu thereof:
    ``(a) If a term of supervised release is imposed, the court is 
required by statute to impose the following conditions:
    (1) that the defendant not commit another federal, state, or local 
crime during the term of supervised release. 18 U.S.C. Sec. 3583 (d). 
This condition is reflected in Sec. 5B1.4(a) (condition #1);
    (2) that the defendant not unlawfully possess a controlled 
substance. 18 U.S.C. Sec. 3583 (d). This condition is reflected in 
Sec. 5B1.4(a) (condition #8);
    (3) in the case of a defendant convicted for the first time of a 
domestic violence crime, as defined in 18 U.S.C. Sec. 3561(b), that the 
defendant attend a public, private, or private nonprofit offender 
rehabilitation program that has been approved by the court, in 
consultation with the State Coalition Against Domestic Violence or 
other appropriate experts, if an approved program is readily available 
within a 50-mile radius of the legal residence of the defendant. 18 
U.S.C. Sec. 3583(d). This condition is reflected in Sec. 5B1.4(b) 
(condition #25);
    (4) that the defendant refrain from any unlawful use of a 
controlled substance and submit to one drug test with 15 day of release 
on supervised release and at least two periodic drug tests thereafter 
(as determined by the court) for use of a controlled substance, but 
this condition may be ameliorated or suspended by the court for any 
individual defendant if the defendant's presentence report or other 
reliable sentencing information indicates a low risk of future 
substance abuse by the defendant. 18 U.S.C. Sec. 3583(d). This

[[Page 185]]

condition is reflected in a broader form in Sec. 5B1.4(a) (condition 
#8), and Sec. 5B1.4(b) (conditions #22 and #23).''.
    Section 5D1.3(b) is amended by deleting ``Sec. 3353(a)(2) and''.
    Section 5D1.3(c) is amended by inserting ``(Recommended Conditions 
of Probation and Supervised Release)'' immediately following 
``Sec. 5B1.4''.
    The Commentary to 5D1.3 captioned ``Background'' is amended by 
deleting the fourth sentence.
    Section 8D1.3(a) is amended by deleting ``shall'' following ``the 
organization''.
    Section 8D1.3 is amended by redesignating subsection (c) as 
subsection (g); and by inserting after subsection (b) the following new 
subsections:
    (c) Pursuant to 18 U.S.C. Sec. 3563(a)(6)(A), any sentence of 
probation shall include the condition that the defendant make 
restitution in accordance with 18 U.S.C. Sec. 2248, 2259, 2327, 3663, 
3663A, and 3664.
    (d) Pursuant to 18 U.S.C. Sec. 3563(a)(6)(B), any sentence of 
probation shall include the condition that the defendant pay the 
special assessment imposed under 18 U.S.C. Sec. 3013.
    (e) Pursuant to 18 U.S.C. Sec. 3563(a)(7), any sentence of 
probation shall include the condition that the defendant notify the 
court of any material change in the defendant's economic circumstances 
that might affect the defendant's ability to pay restitution, fines, or 
special assessments.
    (f) Pursuant to 18 U.S.C. Sec. 3563(a), if the court has imposed a 
fine, any sentence of probation shall include the condition that the 
defendant pay the fine or adhere to a court-established installment 
schedule.
    B. Issue for Comment: The Commission invites comment as to whether 
Secs. 5B1.3 (Conditions of Probation), 5B1.4 (Recommended Conditions of 
Probation and Supervised Release (Policy Statements)), and 5D1.3 
(Conditions of Supervised Release) should be reorganized so as to 
better distinguish between the statutorily required, standard, and 
special conditions of probation and supervised release. For example, 
one option could be to delete Sec. 5B1.4 and amend Secs. 5B1.3 and 
5D1.3 so that subsection (a) of each guideline lists all the 
statutorily required conditions of probation or supervised release, 
subsection (b) lists all the standard conditions, and subsection (c) 
lists all the optional conditions.

Section 5D1.2  Term of Supervised Release

    30. Synopsis of Proposed Amendment: This amendment amends 
Sec. 5D1.2 (Term of Supervised Release) to make clear that a defendant 
who qualifies under the ``safety valve'' (Sec. 5C1.2, 18 U.S.C. 
Sec. 3553(f)) is not subject to any statutory minimum term of 
supervised release. This issue has arisen in a number of hotline calls. 
This amendment also clarifies that the requirement in subsection (a), 
with respect to the length of a term of supervised release, is subject 
to the requirement in subsection (b) that the term be not less than any 
statutorily required term of supervised release.
    Proposed Amendment: Section 5D1.2(a) is amended by deleting ``If'' 
and inserting in lieu thereof ``Subject to subsection (b), if''.
    Section 5D1.2(b) is amended by deleting ``The'' and inserting in 
lieu thereof ``Provided, that the''.
    The Commentary to Sec. 5D1.2 is amended by inserting the following 
immediately before ``Background'':
    ``Application Note:

    1. In the case of a defendant who qualifies under Sec. 5C1.2 
(Limitation on Applicability of Statutory Minimum Sentence in 
Certain Cases), the term of supervised release is to be determined 
under subsection (a) without regard to any otherwise applicable 
statutory minimum term of supervised release; i.e., the requirement 
in subsection (b) is inapplicable in such a case because a statutory 
minimum term of supervised release no longer applies to that 
defendant.''.

Section 5E1.1  Restitution

    31(A). Synopsis of Proposed Amendment: This amendment conforms the 
provisions of Sec. 5E1.1 to the mandatory restitution provisions of the 
Antiterrorism and Effective Death Penalty Act of 1996. Because the new 
restitution provisions have ex post facto provisions that cannot be 
addressed in the usual fashion (by determining whether the final 
Chapter Five guideline range is greater), a separate provision is set 
forth as a special instruction to address this issue and allow the 
maintenance of the Commission's ``one book'' rule.
    Proposed Amendment: Section 5E1.1(a)(1) is amended by inserting 
``in the case of an identifiable victim of the offense for the full 
amount of the victim's loss,'' immediately following ``restitution 
order''; by deleting ``Sec. '' immediately after ``18 U.S.C.''; by 
inserting ``2248, Sec. 2259, Sec. 2264, Sec. 2327, Sec. '' immediately 
before ``3663''; and by deleting ``-3664'' and inserting in lieu 
thereof ``, or Sec. 3663A''.
    Section 5E1.1(a)(2) is amended by inserting ``impose a term of 
probation or supervised release with a condition requiring restitution 
in the case of an identifiable victim of the offense for the full 
amount of the victim's loss,'' immediately before ``if a restitution''; 
by deleting ``Sec. '' immediately following ``18 U.S.C.''; by deleting 
``-3664'' immediately following ``3663''; by deleting ``set forth in'' 
and inserting in lieu thereof ``under''; by inserting ``21 U.S.C. 
Sec. 841, Sec. 848(a), Sec. 849, Sec. 856, Sec. 861, or Sec. 863,'' 
immediately following ``States Code,''; and by deleting ``, impose a 
term of probation or supervised release with a condition requiring 
restitution''.
    Section 5E1.1(b) is amended by deleting it in its entirety and 
inserting in lieu thereof:
    ``(b) Provided, that the provisions of subsection (a) do not 
apply--
    (1) when full restitution has been made; or
    (2) in the case of a restitution order under Sec. 3663; a 
restitution order under 18 U.S.C. Sec. 3663A that pertains to an 
offense against property described in 18 U.S.C. 
Sec. 3663A(c)(1)(A)(ii); or a condition of restitution imposed pursuant 
to subsection (a)(2) above, to the extent the court finds, from facts 
on the record, that (1) the number of identifiable victims is so large 
as to make restitution impracticable, or (2) determining complex issues 
of fact related to the cause or amount of the victim's losses would 
complicate or prolong the sentencing process to a degree that the need 
to provide restitution to any victim is outweighed by the burden on the 
sentencing process.''
    Section 5E1.1(c) is amended by inserting ``to an identifiable 
victim'' immediately following ``to make restitution''.
    Section 5E1.1(d) is deleted in its entirety and the following new 
subsections are inserted in lieu thereof:
    ``(d) A restitution order may direct the defendant to make a 
single, lump sum payment, partial payments at specified intervals, in-
kind payments, or a combination of payments at specified intervals and 
in-kind payments. 18 U.S.C. Sec. 3664(f)(3)(A). An in-kind payment may 
be in the form of (1) return of property; (2) replacement of property, 
or (3) if the victim agrees, services rendered to the victim or to a 
person or organization other than the victim. 18 U.S.C. 
Sec. 3664(f)(4).
    (e) A restitution order may direct the defendant to make nominal 
periodic payments if the court finds from facts on the record that the 
economic circumstances of the defendant do not

[[Page 186]]

allow the payment of any amount of a restitution order and do not allow 
for the payment of the full amount of a restitution order in the 
foreseeable future under any reasonable schedule of payments.
    (f) Special Instruction.
    (1) This guideline applies only to a defendant convicted of an 
offense committed on or after November 1, 1997. Notwithstanding the 
provisions of Sec. 1B1.11 (Use of Guidelines Manual in Effect on Date 
of Sentencing), use the former Sec. 5E1.1 (set forth in Appendix C, 
amendment 537) in lieu of this guideline in any other case.''.
    The Commentary to Sec. 5E1.1 captioned ``Application Note'' is 
amended by deleting Note 1 in its entirety; and by deleting 
``Application Note:''.
    The Commentary to Sec. 5E1.1 captioned ``Background'' is amended in 
the first sentence of the first paragraph by inserting ``, United 
States Code,'' immediately following ``Title 18''; by deleting the 
second sentence and inserting the following in lieu thereof: ``Orders 
of restitution are authorized under 18 U.S.C. Secs. 2248, 2259, 2264, 
2327, 3663, and 3663A.''; in the third sentence by deleting ``other'' 
immediately following ``For''; and by inserting ``for which an order of 
restitution is not authorized'' immediately following ``offenses''; and 
by deleting the fourth sentence and inserting in lieu thereof ``To the 
extent that any of the above-noted statutory provisions conflict with 
the provisions of this guideline, the applicable statutory provision 
shall control.''.
    The Commentary to Sec. 5E1.1 captioned ``Background'' is amended by 
deleting the second through fifth paragraphs in their entirety.
    Section 8B1.1 is deleted in its entirety and the following is 
inserted in lieu thereof:
    ``Sec. 8B1.1. Restitution--Organizations.
    (a) The court shall----
    (1) Enter a restitution order in the case of an identifiable victim 
of the offense for the full amount of the victim's loss, if such order 
is authorized under 18 U.S.C. Sec. 2248, Sec. 2259, Sec. 2264, 
Sec. 2327, Sec. 3663, or Sec. 3663A; or
    (2) Impose a term of probation with a condition requiring 
restitution in the case of an identifiable victim of the offense for 
the full amount of the victim's loss, if a restitution order would be 
authorized under 18 U.S.C. Sec. 3663, except for the fact that the 
offense of conviction is not an offense under Title 18, United States 
Code, 21 U.S.C. Sec. 841, Sec. 848(a), Sec. 849, Sec. 856, Sec. 861, or 
Sec. 863, or 49 U.S.C. Sec. 46312, Sec. 46502, or Sec. 46504.
    (b) Provided, that the provisions of subsection (a) do not apply--
    (1) when full restitution has been made; or
    (2) in the case of a restitution order under Sec. 3663; a 
restitution order under 18 U.S.C. Sec. 3663A that pertains to an 
offense against property described in 18 U.S.C. 
Sec. 3663A(c)(1)(A)(ii); or a condition of restitution imposed pursuant 
to subsection (a)(2) above, to the extent the court finds, from facts 
on the record, that (1) the number of identifiable victims is so large 
as to make restitution impracticable, or (2) determining complex issues 
of fact related to the cause or amount of the victim's losses would 
complicate or prolong the sentencing process to a degree that the need 
to provide restitution to any victim is outweighed by the burden on the 
sentencing process.
    (c) If a defendant is ordered to make restitution to an 
identifiable victim and to pay a fine, the court shall order that any 
money paid by the defendant shall first be applied to satisfy the order 
of restitution.
    (d) A restitution order may direct the defendant to make a single, 
lump sum payment, partial payments at specified intervals, in-kind 
payments, or a combination of payments at specified intervals and in-
kind payments. 18 U.S.C. Sec. 3664(f)(3)(A). An in-kind payment may be 
in the form of (1) return of property; (2) replacement of property, or 
(3) if the victim agrees, services rendered to the victim or to a 
person or organization other than the victim. 18 U.S.C. 
Sec. 3664(f)(4).
    (e) A restitution order may direct the defendant to make nominal 
periodic payments if the court finds from facts on the record that the 
economic circumstances of the defendant do not allow the payment of any 
amount of a restitution order, and do not allow for the payment of the 
full amount of a restitution order in the foreseeable future under any 
reasonable schedule of payments.
    (f) Special Instruction.
    (1) This guideline applies only to a defendant convicted of an 
offense committed on or after November 1, 1997. Notwithstanding the 
provisions of Sec. 1B1.11 (Use of Guidelines Manual in Effect on Date 
of Sentencing), use the former Sec. 8B1.1 (set forth in Appendix C, 
amendment 537) in lieu of this guideline in any other case.

Commentary

    Background: Section 3553(a)(7) of Title 18 requires the court, ``in 
determining the particular sentence to be imposed,'' to consider ``the 
need to provide restitution to any victims of the offense.'' Orders of 
restitution are authorized under 18 U.S.C. Secs. 2248, 2259, 2264, 
2327, 3663, and 3663A. For offenses for which an order of restitution 
is not authorized, restitution may be imposed as a condition of 
probation.''.
    (B) Issue for Comment: Community Restitution--Section 205 of the 
Antiterrorism and Effective Death Penalty Act of 1996 (``the Act'') 
authorizes district courts to order ``community restitution'' when 
sentencing a defendant convicted of an offense described in section 
401, 408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act 
(21 U.S.C. Sec. 841, Sec. 848(a), Sec. 849, Sec. 856, Sec. 861, or 
Sec. 863) in which there is no identifiable individual victim. The Act 
further directs the Commission to promulgate guidelines, based on the 
amount of public harm caused by the offense and not to exceed the 
amount of the fine ordered for the offense, to assist courts in 
determining the appropriate amount of community restitution to be 
ordered in individual cases.
    The Commission requests comment regarding implementation of this 
directive so as to fully effectuate congressional intent. The 
Commission specifically requests comment on (1) how the Commission 
should determine the appropriate amount of community restitution to be 
ordered, (2) whether it would be appropriate to determine the amount of 
community restitution by reference to the fine table found at section 
5E1.2 of the Guidelines Manual, (3) whether it would be appropriate to 
apportion a specific percentage of any fine ordered under the current 
guidelines to community restitution, and (4) if it is appropriate to 
apportion a specific percentage of any fine ordered under the current 
guidelines to community restitution, whether the Commission should 
adjust the fine table.

Section 5E1.3  Special Assessments

    32. Synopsis of Proposed Amendment: This amendment implements 
section 210 of the Antiterrorism and Effective Death Penalty Act of 
1996. That section amends 18 U.S.C. Sec. 3013(a)(2) to provide for a 
special assessment, in the case of a felony, of not less than $100 for 
an individual and not less than $400 for an organization.
    Proposed Amendment: Section 5E1.3 is deleted in its entirety and 
the following replacement guideline is inserted in lieu thereof:

[[Page 187]]

``Sec. 5E1.3. Special Assessments.

    (a) In the case of a defendant convicted of a felony offense 
committed on or after April 24, 1996, the special assessment shall be 
$100.
    (b) In the case of a defendant convicted of--
    (1) A misdemeanor offense or an infraction; or
    (2) A felony offense committed prior to April 24, 1996,

the special assessment shall be the amount fixed by statute (18 U.S.C. 
Sec. 3013).

Commentary

    Application Notes:
    1. This guideline applies only if the defendant is an individual. 
See Sec. 8E1.1 for special assessments applicable to organizations.
    In the case of a felony conviction for an offense committed by an 
individual on or after April 24, 1996, this guideline specifies a 
special assessment in the amount of $100. Any greater special 
assessment is a departure from this guideline.
    In any other case, the special assessment is in the amount set 
forth by statute.
    2. The following special assessments are provided by statute (18 
U.S.C. Sec. 3013):
    For Offenses Committed By Individuals On Or After April 24, 1996:
    (A) Not less than $100, if convicted of a felony;
    (B) $25, if convicted of a Class A misdemeanor;
    (C) $10, if convicted of a Class B misdemeanor or an infraction;
    (D) $5, if convicted of an infraction or a Class C misdemeanor.
    For Offenses Committed By Individuals On Or After November 18, 
1988, But Prior To April 24, 1996:
    (E) $50, if convicted of a felony;
    (F) $25, if convicted of a Class A misdemeanor;
    (G) $10, if convicted of a Class B misdemeanor or an infraction;
    (H) $5, if convicted of an infraction or a Class C misdemeanor.
    For Offenses Committed By Individuals Prior To November 18, 1988:
    (I) $50, if convicted of a felony;
    (J) $25, if convicted of a misdemeanor.
    3. A special assessment is required by statute for each count of 
conviction.
    Background: Section 3013 of Title 18, added by The Victims of 
Crimes Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2174 (1984), 
requires courts to impose special assessments on convicted defendants 
for the purpose of funding the Crime Victims Fund established by the 
same legislation.
    In the case of felony conviction for an offense committed on or 
after April 24, 1996, the special assessment authorized by statute on 
each count is not less than $100 if the defendant is an individual. No 
maximum limit is specified. In all other cases, the amount of the 
special assessment is fixed by statute.
    The Commission has set the guideline for a special assessment for a 
felony offense committed by an individual on or after April 24, 1996 at 
$100. The Commission believes a special assessment in this amount, 
combined with the restitution provisions in Sec. 5E1.1 (Restitution) 
and the fine provisions in Sec. 5E1.2 (Fines) (which increase with the 
seriousness of the offense committed), will provide an appropriate, 
coordinated financial penalty.''.
    Section 8E1.1 amended by deleting the guideline in its entirety and 
the following replacement guideline is inserted in lieu thereof:

Section 8E1.1.  Special Assessments--Organizations

    (a) In the case of a defendant convicted of a felony offense 
committed on or after April 24, 1996, the special assessment shall be 
$400.
    (b) In the case of a defendant convicted of--
    (1) A misdemeanor offense or an infraction; or
    (2) A felony offense committed prior to April 24, 1996,
the special assessment shall be the amount fixed by statute (18 U.S.C. 
Sec. 3013).

Commentary

    Application Notes:
    1. This guideline applies if the defendant is an organization. It 
does not apply if the defendant is an individual. See Sec. 5E1.3 for 
special assessments applicable to individuals.
    In the case of a felony conviction for an offense committed by an 
organization on or after April 24, 1996, this guideline specifies a 
special assessment in the amount of $400. Any greater special 
assessment is a departure from this guideline.
    In any other case, the special assessment is in the amount set 
forth by statute.
    2. The following special assessments are provided by statute (18 
U.S.C. Sec. 3013):
    For Offenses Committed By Organizations On Or After April 24, 1996:
    (A) Not less than $400, if convicted of a felony;
    (B) $125, if convicted of a Class A misdemeanor;
    (C) $50, if convicted of a Class B misdemeanor; or
    (D) $25, if convicted of a Class C misdemeanor or an infraction.
    For Offenses Committed By Organizations On Or After November 18, 
1988 But Prior To April 24, 1996:
    (E) $200, if convicted of a felony;
    (F) $125, if convicted of a Class A misdemeanor;
    (G) $50, if convicted of a Class B misdemeanor; or
    (H) $25, if convicted of a Class C misdemeanor or an infraction.
    For Offenses Committed By Organizations Prior To November 18, 1988:
    (I) $200, if convicted of a felony;
    (J) $100, if convicted of a misdemeanor.
    3. A special assessment is required by statute for each count of 
conviction.
    Background: Section 3013 of Title 18, added by The Victims of 
Crimes Act of 1984, Pub. L. No. 98-473, Title II, Chap. XIV, requires 
courts to impose special assessments on convicted defendants for the 
purpose of funding the Crime Victims Fund established by the same 
legislation.
    In the case of felony conviction for an offense committed on or 
after April 24, 1996, the special assessment authorized by statute on 
each count is not less than $400 if the defendant is an organization. 
No maximum limit is specified. In all other cases, the amount of the 
special assessment is fixed by statute.
    The Commission has set the guideline for a special assessment for a 
felony offense committed by an organization on or after April 24, 1996 
at $400. The Commission believes a special assessment in this amount, 
combined with the restitution provisions in Part B of this Chapter and 
the fine provisions in Part C of this Chapter (which increase with the 
seriousness of the offense committed), will provide an appropriate, 
coordinated financial penalty.''.

Section 5H1.13  Susceptibility to Abuse in Prison and Designation of 
Prison Facility

    33. Synopsis of Proposed Amendment: This amendment creates an 
additional policy statement in Chapter 5, part H as Sec. 5H1.13 
(Susceptibility to Abuse in Prison and Designation of Prison (Policy 
Statement)). The amendment provides that neither susceptibility to 
abuse in prison nor the type of imprisonment facility designated for 
service of imprisonment is ordinarily relevant in determining a 
departure.
    Proposed Amendment: Chapter 5, Part H is amended by inserting an 
additional policy statement as:

[[Page 188]]

    ``Sec. 5H1.13. Susceptibility to Abuse in Prison and Designation of 
Prison Facility (Policy Statement).
    Neither susceptibility to abuse in prison nor the type of facility 
designated for service of a term of imprisonment is ordinarily relevant 
in determining whether a sentence should be outside the applicable 
guideline range.''.

Section 5K2.0  Grounds for Departure

    34. Synopsis of Proposed Amendment: This amendment proposes to make 
changes to policy statement Sec. 5K2.0 (Grounds for Departure). The 
proposed amendment moves language discussing departure policies from 
the Introduction of the Guidelines Manual to Sec. 5K2.0; deletes a 
sentence that, under the proposed emergency amendment to the 
immigration guidelines, will no longer be apt; adds a citation to Koon 
v. United States, 116 S.Ct. 2035 (1996), to reflect the greater 
deference to be accorded district court departure decisions by the 
appellate courts; adds a sentence stating that departures must be 
consistent with the purposes of sentencing and Sentencing Reform Act 
goals; and makes minor changes to improve the precision of the 
language.
    Proposed Amendment: Section 5K2.0 is amended by deleting ``Under 18 
U.S.C. Sec. 3553(b) the sentencing court may impose a sentence outside 
the range established by the applicable guideline, if the court finds 
`that there exists an aggravating or mitigating circumstance of a kind, 
or to a degree, not adequately taken into consideration by the 
Sentencing Commission in formulating the guidelines that should result 
in a sentence different from that described.' '' and inserting in lieu 
thereof ``The Sentencing Reform Act permits a court to depart from a 
guideline range when it finds `an aggravating or mitigating 
circumstance, of a kind or to a degree, not adequately taken into 
consideration by the Sentencing Commission in formulating the 
guidelines that should result in a sentence different from that 
described. 18 U.S.C. Sec. 3553(b). The Commission intends for 
sentencing courts to treat each guideline as carving out a `heartland,' 
a set of typical cases embodying the conduct that each guideline 
describes. When a court finds an atypical case, one to which a 
particular guideline linguistically applies, but where conduct 
significantly differs from the norm, the court may consider whether a 
departure is warranted. With the few exceptions noted below, the 
Commission does not intend to limit the kinds of factors, whether or 
not mentioned anywhere else in the guidelines, that could constitute 
grounds for departure in an unusual case.
    Factors that the court may not take into account as grounds for 
departure are:
    (1) race, sex, national origin, creed, religion, and socio-economic 
status (See Sec. 5H1.10);
    (2) Lack of guidance as a youth and similar circumstances (See 
Sec. 5H1.12);
    (3) Drug or alcohol abuse (See Sec. 5H1.4);
    (4) Personal financial difficulties and economic pressures upon a 
trade or business (See Sec. 5K2.12).''.
    Section 5K2.0 is amended in the first paragraph by beginning a new 
paragraph at the sentence that starts ``Circumstances that may warrant 
departure''; by deleting ``guidelines'' immediately following ``from 
the'' and inserting in lieu thereof ``guideline range''; by deleting 
``controlling'' immediately following ``The''; by deleting ``can only 
be'' immediately following ``warranted'' and inserting in lieu thereof 
``most appropriately is''; by deleting ``courts'' immediately following 
``the'' and inserting in lieu thereof ``sentencing court on a case-
specific basis''; by inserting ``determining'' immediately following 
``consideration in''; by deleting ``guidelines'' immediately following 
``consideration in the'' and inserting in lieu thereof ``guideline 
range''; by deleting ``guideline level'' immediately following 
``circumstances, the'' and inserting in lieu thereof ``weight''; and by 
inserting ``under the guidelines'' immediately following ``factor''.
    Section 5K2.0 is amended in the third paragraph by deleting ``For 
example, the use of a weapon has been listed as a specific offense 
characteristic under many guidelines, but not under immigration 
violations. Therefore, if a weapon is a relevant factor to sentencing 
for an immigration violation, the court may depart for this reason.''
    Section 5K2.0 is amended in the fourth paragraph by deleting ``An'' 
and inserting in lieu thereof ``Finally, an''; by inserting ``, in the 
commission's view,'' immediately following ``circumstance that''; and 
by inserting parentheses around ``not ordinarily relevant'' immediately 
before ``in determining''.
    The Commentary to Sec. 5K2.0 is amended by inserting ``Moreover, 
any cited basis for departure must be consistent with the statutory 
purposes of sentencing and the fundamental objectives of the Sentencing 
Reform Act. See 18 U.S.C. Secs. 3553(a),(b), 28 U.S.C. Sec. 991 
(b)(1).'' immediately before ``For, example''; and by inserting as a 
new paragraph ``The Supreme Court has determined that, in reviewing a 
district court's decision to depart from the guidelines, appellate 
courts are to apply an abuse of discretion standard. Koon v. United 
States, 116 S.Ct. 2035 (1996).''

Section 5K2.19  Successive Federal Prosecution

    35. Synopsis of Proposed Amendment: This amendment proposes to 
create an additional amendment in Chapter 5, Part K as Sec. 5K2.19 
(Successive Federal Prosecutions (Policy Statement)). The amendment 
provides that a federal prosecution following another jurisdiction's 
prosecution for the same or similar conduct is not ordinarily relevant 
in determining a departure, except as authorized by Sec. 5G1.3 
(Imposition of a Sentence on a Defendant subject to an Undischarged 
Term of Imprisonment).
    Proposed Amendment: Chapter 5, Part K is amended by inserting an 
additional policy statement as follows:

    ``Sec. 5K2.19. Successive Federal Prosecution (Policy 
Statement).
    Prosecution and conviction in federal court following 
prosecution in another jurisdiction for the same or similar offense 
conduct is not ordinarily relevant in determining whether a sentence 
below the guideline range is warranted, except as authorized by 
Sec. 5G1.3 (Imposition of a Sentence on a Defendant subject to an 
Undischarged Term of Imprisonment). In circumstances not covered by 
Sec. 5G1.3, concerns about the impact of successive prosecutions 
must be carefully weighed against concerns relating to the 
legitimate exercise of prosecutorial authority by separate 
sovereigns.''.

Section 6A1.1  Presentence Report

    36. Synopsis of Proposed Amendment: This amendment makes a number 
of technical changes to Chapter Six (Sentencing Procedures and Plea 
Agreements) to reflect changes recently made in the structure of Rule 
32, Fed. R. Crim. P.
    Proposed Amendment: Section 6A1.1 is amended by deleting ``(c)(1)'' 
and inserting in lieu thereof ``(b)(1)''.
    The Commentary to Sec. 6A1.1 is amended by deleting ``(c)(1)'' and 
inserting in lieu thereof ``(b)(1)''.
    Section 6A1.2 is amended by deleting ``See Model Local Rule for 
Guideline Sentencing prepared by the Probation Committee of the 
Judicial Conference (August 1987)'' and insert in lieu thereof ``Rule 
32 (b)(6), Fed. R. Crim. P.''.
    The Commentary to Sec. 6A1.2 captioned ``Application Note'' is 
amended in Note 1 by deleting ``111 S. Ct. 2182'' and inserting in lieu 
thereof ``501 U.S. 129, 135-39''.
    The Commentary to Sec. 6A1.2 captioned ``Background'' is amended by 
inserting

[[Page 189]]

``in writing'' immediately following ``respond''; and by deleting the 
second, third, and fourth sentences and inserting in lieu thereof 
``Rule 32 (b)(6), Fed. R. Crim. P.''.
    Section 6A1.3(a) is amended in the second sentence by deleting 
``reasonable'' immediately before ``dispute''.
    Section Sec. 6A1.3(b) is amended by inserting ``at a sentencing 
hearing'' immediately following ``factors''; by deleting ``(a)(1)'' and 
inserting in lieu thereof ``(c)(1)''; and by deleting ``(effective Nov. 
1, 1987), notify the parties of its tentative findings and provide a 
reasonable opportunity for the submission of oral written objections 
before imposition of sentence''.
    The Commentary to Sec. 6A1.3 is amended in the seventh sentence of 
the first paragraph by deleting ``reasonable'' immediately before 
``dispute''.
    The Commentary to Sec. 6A1.3 is amended by deleting the last 
paragraph in its entirety.

Consolidation of Closely Related Guidelines

    37. Synopsis of Proposed Amendment: This amendment consolidates a 
number of Chapter Two offense guidelines. There are several advantages 
to consolidation of offense guidelines: (1) shortening the Guidelines 
Manual and simplifying its application and appearance; (2) reducing the 
potential for inconsistency in phraseology and definitions between 
closely related offense guidelines (and litigation as to the meaning of 
such differences); (3) reducing the potential for inadvertent, 
unwarranted inconsistency in offense levels among closely related 
offense guidelines; (4) reducing the potential for uncertainty (and 
resulting litigation) as to which offense guideline applies when one 
statute references two or more closely related offense guidelines; (5) 
making application of the rules relating to the grouping of multiple 
counts of conviction simpler by reducing the frequency of cases in 
which the offense levels have to be determined under more than one 
guideline using aggregate quantity and then compared (Sec. 3D1.3(b)); 
(6) reducing the number of cross references in the Guidelines Manual 
and the added calculations entailed; (7) aiding the development of case 
law because cases involving similar or identical concepts will be 
referenced under one guideline section rather than different guideline 
sections; and (8) reducing the number of conforming amendments required 
when the guidelines are amended.
    On the other hand, the proposed consolidation of offense guidelines 
may raise one or more of the following concerns: (1) some of the 
proposals result, or may result, in a change in offense levels for some 
offenses (due mainly to the application of specific offense 
characteristics and cross references as a result of consolidation); (2) 
some of the proposals may move closer to a ``real offense'' system with 
respect to offense behavior covered by those proposals; and (3) some of 
the proposals implicate other policy issues (e.g.; through the 
elimination of specific offense characteristics).
    (A) Consolidation of Secs. 2A1.5 and 2E1.4.
    Synopsis of Proposed Amendment: Section 2E1.4 (Use of Interstate 
Commerce Facilities in the Commission of Murder-For-Hire) is 
consolidated with Sec. 2A1.5 (Conspiracy or Solicitation to Commit 
Murder) with no change in offense levels. The base offense level of 32 
under Sec. 2E1.4 is represented in the consolidation by a base offense 
level of 28 plus four levels for pecuniary gain under subsection 
(b)(2). The four-level enhancement for pecuniary gain always should 
apply to murder-for-hire offenses under Sec. 2E1.4. This amendment also 
eliminates the cross reference in Sec. 2A1.5(c)(2) and replaces it with 
a bodily injury enhancement in subsection (b)(1).
    The 1993 Annual Report (FY 93) shows 31 cases sentenced under 
Sec. 2A1.5 (in 13 of those it was the primary guideline) and 26 cases 
sentenced under Sec. 2E1.4 (in 24 of those it was the primary 
guideline).
    The 1994 Annual Report (FY 94) shows 28 cases sentenced under 
Sec. 2A1.5 (in 18 of those it was the primary guideline) and 31 cases 
sentenced under Sec. 2E1.4 (in 23 of those it was the primary 
guideline).
    The 1995 Annual Report (FY 95) shows 25 cases sentenced under 
Sec. 2A1.5 (in 16 of those it was the primary guideline) and 20 cases 
sentenced under Sec. 2E1.4 (in 15 of those it was the primary 
guideline).
    Proposed Amendment: Section 2A1.5 is amended in the title by 
inserting at the end ``; Use of Interstate Commerce Facilities in the 
Commission of Murder-For-Hire''. Section 2A1.5(b) is amended by 
redesignating subdivision (1) as subdivision (2) and by inserting the 
following new subdivision:
    ``(1) (A) If the victim sustained permanent or life-threatening 
bodily injury, increase by 4 levels; or (B) if the victim sustained 
serious bodily injury, increase by 2 levels''.
    Section 2A1.5(c) is amended in the caption by deleting 
``References'' and inserting in lieu thereof ``Reference''.
    Section 2A1.5(c) is amended by deleting:
    ``(2) If the offense resulted in an attempted murder or assault 
with intent to commit murder, apply Sec. 2A2.1 (Assault With Intent to 
Commit Murder; Attempted Murder).''.
    The Commentary to Sec. 2A1.5 captioned ``Statutory Provisions'' is 
amended by inserting after ``1751(d)'' ``,1958 (formerly 18 U.S.C. 
Sec. 1952A).''.
    The Commentary to Sec. 2A1.5 is amended by inserting the following 
at the end:

    ``Application Notes:
    1. Definitions of `serious bodily injury' and `permanent or 
life-threatening bodily injury' are found in the Commentary to 
Sec. 1B1.1 (Application Instructions).
    2. If the offense involved a substantial risk of death or 
serious bodily injury to more than one person, an upward departure 
may be warranted.''.

    Section 2E1.4 is deleted in its entirety.
    (B) Consolidation of Secs. 2A2.3 and 2A2.4.
    Synopsis of Proposed Amendment: Section 2A2.4 (Obstructing or 
Impeding Officers) is consolidated with Sec. 2A2.3 (Minor Assault). The 
resulting offense levels are the same as those under the current 
guidelines, except for the following differences. First, the cross 
reference to aggravated assault (shown as an option under the 
consolidated guideline) would now apply to offenses under Sec. 2A2.3. 
Currently, the cross reference to aggravated assault applies only to 
Sec. 2A2.4. Second, the enhancement for official victim in the 
consolidated guideline would now apply to minor assault cases under 
Sec. 2A2.3. Similarly, the upward departure provision for significant 
disruption of governmental function (Application Note 3 of the 
consolidated guideline) would apply to minor assault cases.
    In addition, there is a split among the circuits as to whether 
subsection (c) refers to the conviction offense or is based on 
consideration of the underlying conduct (compare United States v. 
Jennings, 991 F.2d 725 (11th Cir. 1993) with United States v. Padilla, 
961 F.2d 322 (2d Cir.), cert. denied, 506 U.S. 846 (1992). There seems 
no reason for the cross reference to apply to one guideline but not the 
other. Two options are provided. If the bracketed language (subsection 
(c)) is included, the cross reference to Sec. 2A2.2 will apply on the 
basis of the underlying conduct (i.e., whether the assault was an 
aggravated or simple assault will be a sentencing

[[Page 190]]

rather than a charge offense factor). If the bracketed language is not 
included, Sec. 2A2.2 will apply only if established by the offense of 
conviction (see Sec. 1B1.2 (Applicable Guidelines)).
    The 1993 Annual Report (FY 93) shows 26 cases sentenced under 
Sec. 2A2.3 (in 25 of those it was the primary guideline) and 97 cases 
sentenced under Sec. 2A2.4 (in 83 of those it was the primary 
guideline).
    The 1994 Annual Report (FY 94) shows 27 cases sentenced under 
Sec. 2A2.3 (in 22 of those it was the primary guideline) and 85 cases 
under Sec. 2A2.4 (in 73 of those it was the primary guideline).
    The 1995 Annual Report (FY 95) shows 24 cases sentenced under 
Sec. 2A2.3 (in 19 of those it was the primary guideline) and 120 cases 
sentenced under Sec. 2A2.4 (in 98 of those it was the primary 
guideline).
    Proposed Amendment: Section 2A2.3 is amended in the title by 
inserting at the end ``; Obstruction or Impeding Officers''.
    Section 2A2.3(b) is amended by deleting ``Characteristic'' and 
inserting in lieu thereof ``Characteristics''.
    Section 2A2.3(b) is amended by redesignating subdivision (1) as 
subdivision (2) and inserting the following new subsection:
    ``(1) If the offense involved obstructing or impeding a 
governmental officer in the performance of his duty, increase by 3 
levels.''.
    Section 2A2.3(b) is amended in the redesignated (2) (formerly (1)) 
by deleting ``resulted in'' and inserting in lieu thereof ``involved''.
    Section 2A2.3 is amended by adding the following additional 
subsection:
    ``[(c) Cross Reference.
    (1) If the offense involved aggravated assault, apply Sec. 2A2.2 
(Aggravated Assault).]''.
    The Commentary to Sec. 2A2.3 captioned ``Statutory Provisions'' is 
amended by inserting ``111,'' immediately before ``112''; by inserting 
``1501, 1502,'' immediately following ``351(e),''; and by inserting ``, 
3056(d)'' immediately following ``1751(e)''.
    The Commentary to Sec. 2A2.3 captioned ``Application Notes'' is 
amended by deleting Notes 1 through 3 and inserting the following as 
new Notes 1 through 3:

    ``1. For purposes of this guideline--
    `Minor assault' means a misdemeanor assault, or a felonious 
assault not covered by Sec. 2A2.2 (Aggravated Assault).
    `Firearm' and `dangerous weapon' have the meaning given such 
terms in the Commentary to Sec. 1B1.1 (Application Instructions).
    `Substantial bodily injury' means `bodily injury which involves 
(A) a temporary but substantial disfigurement; or (B) a temporary 
but substantial loss or impairment of the function of any bodily 
member, organ, or mental faculty.' See 18 U.S.C. Sec. 113(b)(1).
    2. Subsection (b)(1) reflects the fact that the victim was a 
governmental officer performing official duties. If subsection 
(b)(1) applies, do not apply Sec. 3A1.2 (Official Victim) unless the 
offense level is determined by use of the cross reference in 
subsection (c).
    3. The offense level under this guideline does not assume any 
significant disruption of governmental functions. In situations 
involving such disruption, an upward departure may be warranted. See 
Sec. 5K2.7 (Disruption of Governmental Function).''.

    The Commentary to Sec. 2A2.3 captioned ``Background'' is deleted in 
its entirety.
    Section 2A2.4 is amended by deleting it in its entirety.
    (C) Consolidation of Secs. 2B1.1, 2B1.3, 2B6.1, and 2H3.3.
    Synopsis of Proposed Amendment: This is a three-part amendment. 
First, Sec. 2B1.3 (Property Damage or Destruction) is consolidated with 
Sec. 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Receiving, 
Transporting, Transferring, Transmitting, or Possessing Stolen 
Property) with no change in offense levels.
    Second, Sec. 2B6.1 (Altering or Removing Motor Vehicle 
Identification Numbers, or Trafficking in Motor Vehicles or Parts with 
Altered or Obliterated Identification Numbers) is consolidated with 
Sec. 2B1.1. Section 2B6.1 is, in effect, a stolen property guideline 
limited to stolen automobiles and automobile parts with altered or 
obliterated identification numbers. The offense levels resulting from 
application of the current guidelines in most cases are identical. The 
only differences are that Sec. 2B6.1 has a built-in adjustment for more 
than minimal planning and a loss of at least $2,000. In the small 
percentage of cases in which the loss is $1,000 or less, or more than 
minimal planning is not found, the offense level from Sec. 2B6.1 is 
higher than from Sec. 2B1.1. To ensure no reduction in offense level 
(with respect to the more than minimal planning adjustment) under the 
consolidated guideline, an application note is added providing that 
more than minimal planning is deemed present when the offense involved 
altering or removing an automobile or automobile part identification 
number or trafficking in an automobile or automobile part with an 
altered or obliterated identification number. Therefore, under the 
consolidated guideline, if the value of the vehicle(s) or part(s) is 
more than $1,000, the offense level will be the same as under the 
current guidelines. The only difference in offense level between the 
current and proposed guideline is that if the value of the vehicle(s) 
or part(s) is $100 or less, the offense level under the consolidated 
guideline will be 6 rather than 8; and if the value of the vehicle(s) 
or part(s) is $101-$1,000, the offense level under the consolidated 
guideline will be 7 rather than 8. In FY 95, 4.3% of cases (i.e.; 3 of 
70 cases) sentenced under Sec. 2B6.1 did not receive an enhancement 
under Sec. 2B6.1(b)(1) because the value of the vehicle was less than 
$2,000.
    Third, the consolidation of Secs. 2B1.1 and 2B1.3 allows the 
consolidation of Sec. 2H3.3 (Obstructing Correspondence) with 
Sec. 2B1.1. No substantive change in offense levels would result.
    The 1993 Annual Report (FY 93) shows 3,902 cases sentenced under 
Secs. 2B1.1 and 2B1.2 (which is now consolidated with Sec. 2B1.1; in 
3,769 of those they were the primary guidelines), 79 cases sentenced 
under Sec. 2B1.3 (in 74 of those it was the primary guideline), 93 
cases sentenced under Sec. 2B6.1 (in 85 of those it was the primary 
guideline), and 17 cases sentenced under Sec. 2H3.3 (in all of those it 
was the primary guideline).
    The 1994 Annual Report (FY 94) shows 3,712 cases sentenced under 
Secs. 2B1.1/2B1.2 (in 3,598 of those they were the primary guidelines), 
62 cases sentenced under Sec. 2B1.3 (in 56 of those it was the primary 
guideline), 55 cases sentenced under Sec. 2B6.1 (in 51 of those it was 
the primary guideline), and nine cases sentenced under Sec. 2H3.3 (in 
all of those it was the primary guideline).
    The 1995 Annual Report (FY 95) shows 3,265 cases sentenced under 
Secs. 2B1.1/2B1.2 (in 3,152 of those it was the primary guideline), 81 
cases sentenced under Sec. 2B1.3 (in 77 of those it was the primary 
guideline), 75 cases sentenced under Sec. 2B6.1 (in 70 of those it was 
the primary guideline), and seven cases sentenced under Sec. 2H3.3 (in 
all of those it was the primary guideline).
    Proposed Amendment: Section 2B1.1 is amended in the title by 
inserting at the end ``; Property Damage or Destruction; Obstructing 
Correspondence''.
    Section Sec. 2B1.1(b)(3) is amended by redesignating ``(B)'' as 
``(C)'';
    By deleting ``or'' immediately after ``was taken'' and inserting in 
lieu thereof ``destroyed, or obstructed, (B)'';
    And by deleting ``of such item'' and inserting in lieu thereof 
``,destruction, or obstruction of undelivered United States mail''.
    Section 2B1.1(b)(5) is amended by inserting ``or to receive stolen 
vehicles or vehicle parts,'' immediately following ``vehicle parts,''.

[[Page 191]]

    Section 2B1.1(c) is amended by deleting ``Reference'' and inserting 
in lieu thereof ``References''; and by inserting the following new 
subdivision at the end:
    ``(2) If the offense involved arson, or property destruction by use 
of explosives, apply Sec. 2K1.4 (Arson; Property Destruction by Use of 
Explosives) if the resulting offense level is greater than that 
determined above.''.
    The Commentary to Sec. 2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``511,'' immediately following ``225,''; by 
inserting ``(2),'' immediately following ``553(a)(1),''; by inserting 
``1361,'' immediately following ``664,''; by inserting ``1703,'' 
immediately following ``1702,''; and by inserting ``,2321'' immediately 
following ``2317''.
    The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is 
amended by inserting the following additional notes:

    ``15. In some cases, the monetary value of the property damaged 
or destroyed may not adequately reflect the extent of the harm 
caused. For example, the destruction of a $500 telephone line may 
cause an interruption in service to thousands of people for several 
hours. In such instances, an upward departure may be warranted.
    16. More than minimal planning shall be deemed present in any 
offense involving altering or removing an automobile (or automobile 
part) identification number or trafficking in an automobile (or 
automobile part) with an altered or obliterated identification 
number.''.

    The Commentary to Sec. 2B1.1 captioned ``Background'' is amended by 
inserting the following as a new first paragraph:
    ``This guideline covers offenses involving theft, stolen property, 
and property damage or destruction. It also covers offenses involving 
altering or removing motor vehicle identification numbers, trafficking 
in automobiles or automobile parts with altered or obliterated 
identification numbers, and obstructing correspondence.'';
    In the third paragraph by deleting ``Consistent with statutory 
distinctions, an'' and inserting in lieu thereof ``An''; by inserting 
in the first sentence of the third paragraph ``, destruction, or 
obstruction'' immediately following ``theft''; and by deleting in the 
third paragraph ``. Theft of undelivered mail interferes with a 
governmental function, and the scope of the theft may be difficult to 
ascertain'' immediately following ``undelivered mail'', and inserting 
in lieu thereof ``because theft, destruction, or obstruction of 
undelivered mail inherently interferes with a governmental function''; 
in the fourth paragraph by inserting ``or to receive stolen vehicles or 
vehicle parts'' immediately following ``vehicle parts'';
    Section 2B1.3 is deleted in its entirety.
    Section 2B6.1 is deleted in its entirety.
    Section 2H3.3 is deleted in its entirety.
    Section 2K1.4(a)(4) is amended by deleting ``Sec. 2B1.3 (Property 
Damage or Destruction)'' and inserting in lieu thereof ``Sec. 2B1.1 
(Larceny, Embezzlement, and Other Forms of Theft; Receiving, 
Transporting, Transferring, Transmitting, or Possessing Stolen 
Property; Property Damage or Destruction; Obstructing 
Correspondence)''.
    (D) Consolidation of Secs. 2C1.2 and 2C1.6.
    Synopsis of Proposed Amendment: This amendment consolidates 
Secs. 2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) and 
2C1.6 (Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of 
Farm Indebtedness, or Procuring Bank Loan, or Discount of Commercial 
Paper). Both guidelines cover offenses involving gratuities and have 
identical base offense levels. There are, however, several 
inconsistencies between Secs. 2C1.2 and 2C1.6. Section 2C1.2 (like 
Sec. 2C1.1) contains enhancements for multiple instances and 
involvement of high-level officials, but Sec. 2C1.6 does not contain 
these enhancements. Section 2C1.2 has a special instruction pertaining 
to fines for organizations; Sec. 2C1.6 does not contain this 
instruction. This amendment removes these inconsistencies. In addition, 
this amendment adds an application note to clarify that the unlawful 
payment involved need not be a monetary payment.
    The 1993 Annual Report (FY 93) shows 15 cases sentenced under 
Sec. 2C1.2 (in 13 of those it was the primary guideline) and one case 
sentenced under Sec. 2C1.6 (in that case it was also the primary 
guideline).
    The 1994 Annual Report (FY 94) shows 39 cases sentenced under 
Sec. 2C1.2 (in 37 of those it was the primary guideline) and no cases 
sentenced under Sec. 2C1.6.
    The 1995 Annual Report (FY 95) shows 37 cases sentenced under 
Sec. 2C1.1 (in 35 of those it was the primary guideline) and no cases 
sentenced under Sec. 2C1.6.
    Proposed Amendment: Section Sec. 2C1.2(b)(2)(A) is amended by 
deleting ``gratuity'' and inserting in lieu thereof ``unlawful 
payment''.
    Section Sec. 2C1.2(b)(2)(B) is amended by deleting ``gratuity'' and 
inserting in lieu thereof ``unlawful payment''.
    The Commentary to Sec. 2C1.2 captioned ``Statutory Provisions'' is 
amended by inserting ``Sec. '' immediately following ``Sec. ''; and by 
inserting ``, 212, 214, 217, 666'' immediately following ``(c)(1)''.
    The Commentary to Sec. 2C1.2 captioned ``Application Notes'' is 
amended by inserting the following additional note:

    ``5. An unlawful payment may be anything of value; it need not 
be a monetary payment.''.

    The Commentary to Sec. 2C1.2 captioned ``Background'' is amended by 
deleting the second, third, and fourth sentences and inserting the 
following in lieu thereof:

    ``It also applies to the offer to, or acceptance by, a bank 
examiner of any unlawful payment; the offer or receipt of anything 
of value for procuring a loan or discount of commercial paper from a 
Federal Reserve Bank; and the acceptance of a fee or other 
consideration by a federal employee for adjusting or cancelling a 
farm debt.''.

    (E) Consolidation of Secs. 2C1.3, 2C1.4, and 2C1.5.
    Synopsis of Proposed Amendment: This amendment consolidates 
Secs. 2C1.3 (Conflict of Interest), 2C1.4 (Payment or Receipt of 
Unauthorized Compensation), and Sec. 2C1.5 (Payments to Obtain Public 
Office) .
    Although the elements of the offenses of conflict of interest 
(currently covered by Sec. 2C1.3) and unauthorized compensation 
(currently covered by Sec. 2C1.4) payment differ in some ways, the 
gravamen of the offenses is similar--unauthorized receipt of a payment 
in respect to an official act. The base offense levels for both 
guidelines are identical. The few cases in which these guidelines were 
applied usually involved a conflict of interest offense that was 
associated with a bribe or gratuity; i.e., the conflict of interest 
statute was used as a plea bargaining statute.
    Note that there may be a change in offense levels for some cases if 
the cross reference to the guidelines for offenses involving a bribe or 
gratuity is provided. If the bracketed language (subsection (c)) is 
included, a cross reference to Sec. 2C1.1 or Sec. 2C1.2 will apply on 
the basis of the underlying conduct; i.e., as a sentencing factor 
rather than a charge of conviction factor.
    Offenses involving payment to obtain public office (currently 
covered by Sec. 2C1.5) generally, but not always, involve the promised 
use of influence to obtain public appointive office. Also, such 
offenses need not involve a public official (see, for example, the 
second paragraph of 18 U.S.C. Sec. 211). The current offense level for 
all such offenses is level 8. The two statutes to which Sec. 2C1.5 
applies (18 U.S.C. Secs. 210

[[Page 192]]

and 211) are both Class A misdemeanors.
    Under the proposed consolidation, the base offense level would be 
level 6, but the higher base offense level of Sec. 2C1.5 would be taken 
into account by a 2-level enhancement in subsection (b)(2) covering 
conduct under 18 U.S.C. Sec. 210 and the first paragraph of 18 U.S.C. 
Sec. 211. There is one circumstance in which a lower offense level may 
result and one circumstance in which a higher offense level may result. 
The offense level for conduct under the second paragraph of 18 U.S.C. 
Sec. 211 (the prong of Sec. 211 that does not pertain to the promise or 
use of influence) is reduced to level 6. On the other hand, conduct 
that involves a bribe of a government official will result in an 
increased offense level (level 10 or greater) under the proposed cross 
reference.
    The 1993 Annual Report (FY 93) shows four cases sentenced under 
Sec. 2C1.3 (in all of those it was the primary guideline), seven cases 
sentenced under Sec. 2C1.4 (in all of those it was the primary 
guideline), and no cases sentenced under Sec. 2C1.5.
    The 1994 Annual Report (FY 94) shows 16 cases sentenced under 
Sec. 2C1.3 (in 13 of those it was the primary guideline), 16 cases 
sentenced under Sec. 2C1.4 (in 15 of those it was the primary 
guideline), and one case sentenced under Sec. 2C1.5 (in that case it 
was also the primary guideline).
    The 1995 Annual Report (FY 95) shows 10 cases sentenced under 
Sec. 2C1.3 (in all of those it was the primary guideline), six cases 
sentenced under Sec. 2C1.4 (in all of those it was the primary 
guideline), and no cases sentenced under Sec. 2C1.5.
    Proposed Amendment: Section 2C1.3 is amended in the title by 
inserting at the end ``; Payment or Receipt of Unauthorized 
Compensation; Payments to Obtain Public Office''.
    Section 2C1.3(b) is amended by inserting the following additional 
subsection:
    (2) If the offense involved (A) the payment, offer, or promise of 
any money or thing of value in consideration of the use of, or promise 
to use, any influence to procure an appointive federal position for any 
person; or (B) the solicitation or receipt of any money or thing or 
value in consideration of the promise of support, or use of influence, 
in obtaining an appointive federal position for any person, increase by 
2 levels.
    Section 2C1.3 is amended by inserting at the end the following:
    [(c) Cross Reference.
    (1) If the offense involved a bribe or gratuity, apply Sec. 2C1.1 
(Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under 
Color of Official Right) or Sec. 2C1.2 (Offering, Giving, Soliciting, 
or Receiving a Gratuity), as appropriate, if the resulting offense 
level is greater than determined above.]
    The Commentary to Sec. 2C1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 209, 210, 211, 1909'' immediately following 
``208''.
    The Commentary to Sec. 2C1.3 captioned ``Application Notes'' is 
amended by deleting ``Note'' and inserting in lieu thereof ``Notes''.
    The Commentary to Sec. 2C1.3 captioned ``Background'' is deleted in 
its entirety.
    Section 2C1.4 is deleted in its entirety.
    Section 2C1.5 is deleted in its entirety.
    (F) Consolidation of Secs. 2D1.9 and 2D1.10.
    Synopsis of Proposed Amendment: Section 2D1.10 is consolidated with 
Sec. 2D1.9. The offenses covered by both guidelines essentially involve 
endangering human life while manufacturing a controlled substance. The 
treatment under the current guidelines, however, is very different. 
Under Sec. 2D1.9 (effective 11/1/87), the offense level is 23, with no 
additional characteristics. Under Sec. 2D1.10 (effective 11/1/89), the 
offense level is the greater of 20 or 3 plus the offense level from the 
underlying drug offense. In the consolidated guideline, the structure 
from Sec. 2D1.10 (the more recently adopted guideline) is used. Two 
bracketed options (level 20 or level 23) are provided for the 
alternative base offense level in subsection (a)(2). If level 20 is 
provided as the alternative base offense level under subsection (a)(2), 
a change in offense levels for some cases under Sec. 2D1.9 may result. 
The base offense level currently is 23 for offenses under Sec. 2D1.9. 
The base offense level applicable for such offenses under the 
consolidation with Sec. 2D1.10 would be either 3 plus the offense level 
from the Drug Quantity Table in Sec. 2D1.1; or 20.
    The 1993 Annual Report (FY 93) shows no cases sentenced under 
Sec. 2D1.9 or Sec. 2D1.10.
    The 1994 Annual report (FY 94) shows no cases sentenced under 
Sec. 2D1.9 and four cases sentenced under Sec. 2D1.10 (in all of those 
it was the primary guideline).
    The 1995 Annual Report (FY 95) shows no cases sentenced under 
Sec. 2D1.9 and four cases sentenced under Sec. 2D1.10 (in all of those 
it was the primary guideline).
    Proposed Amendment: Section 2D1.10 is amended in the title by 
inserting at the end ``; Placing or Maintaining Dangerous Devices on 
Federal Property to Protect the Unlawful Production of Controlled 
Substances; Attempt or Conspiracy''.
    Section 2D1.10(a)(2) is amended by deleting ``20'' and inserting in 
lieu thereof ``[20][23]''.
    The Commentary to Sec. 2D1.10 is amended by deleting ``Provision'' 
and inserting in lieu thereof ``Provisions'' and by inserting 
``Sec. 841 (e),'' immediately following ``Sec. ''.
    Section 2D1.9 is deleted in its entirety.
    Section 2D1.10 is redesignated as Sec. 2D1.9.
    (G) Consolidation of Secs. 2D2.1 and 2D2.2.
    Synopsis of Proposed Amendment: Sections 2D2.2 (Acquiring a 
Controlled Substance by Forgery, Fraud, Deception, or Subterfuge; 
Attempt or Conspiracy) and 2D2.1 (Unlawful Possession; Attempt or 
Conspiracy) are consolidated. The only substantive change is that any 
adjustment for acquiring a controlled substance by forgery, fraud, 
deception, or subterfuge will be determined as a sentencing factor 
rather than on the basis of the offense of conviction.
    The 1993 Annual Report shows 961 cases sentenced under Sec. 2D2.1 
(in 904 of those it was the primary guideline) and 38 cases sentenced 
under Sec. 2D2.2 (in 34 of those it was the primary guideline).
    The 1994 Annual Report (FY 94) shows 845 cases sentenced under 
Sec. 2D2.1 (in 809 of those it was the primary guideline) and 46 cases 
sentenced under Sec. 2D2.2 (in 41 of those it was the primary 
guideline).
    The 1995 Annual Report (FY 95) shows 630 cases sentenced under 
Sec. 2D2.1 (in 587 of those it was the primary guideline), 24 cases 
sentenced under Sec. 2D2.2 (in 17 of those it was the primary 
guideline).
    Proposed Amendment: Section 2D2.1 is amended in the title by 
inserting ``of a Controlled Substance; Acquiring a Controlled Substance 
by Misrepresentation, Forgery, Fraud, Deception or Subterfuge'' 
immediately following ``Possession''.
    Section 2D2.1(b) is redesignated as ``(c)''.
    Section 2D2.1(c)(2) (formerly (b)(2)) is amended by inserting ``if 
the resulting offense level is greater than that determined above'' 
immediately before ``.''.
    Section 2D2.1 is amended by adding the following new subsection 
after subsection (a):
    ``(b) Specific Offense Characteristic
    (1) If the offense involved acquiring a controlled substance from a 
legally

[[Page 193]]

authorized source by misrepresentation, forgery, fraud, deception, or 
subterfuge, increase by 2 levels. If the resulting offense level is 
less than level 8, increase to level 8.''.
    The Commentary to Sec. 2D2.1 is amended by deleting ``Provision'' 
and inserting in lieu thereof ``Provisions'' and by inserting 
``Sec. 843(a)(3),'' immediately after ``Sec. ''.
    The Commentary to Sec. 2D2.1 is amended by inserting the following:

    ``Application Note:
    1. Subsection (b)(1) would apply, for example, where the 
defendant obtained a controlled substance from a pharmacist by using 
a forged prescription or a prescription obtained from a physician by 
fraud or deception.''.

    The Commentary to Sec. 2D2.1 captioned ``Background'' is amended in 
the second paragraph by deleting ``2D2.1(b)'' and inserting in lieu 
thereof ``2D2.1(c)''.
    Section 2D2.2 is deleted in its entirety.
    (H) Consolidation of Secs. 2D3.1 and 2D3.2.
    Synopsis of Proposed Amendment: Sections 2D3.1 (Regulatory Offenses 
Involving Registration Numbers; Unlawful Advertising Relating to 
Schedule I Substances; Attempt or Conspiracy) and 2D3.2 (Regulatory 
Offenses Involving Controlled Substances; Attempt or Conspiracy) are 
consolidated. Section 2D3.1 currently has a base offense level of 6; 
Sec. 2D3.2 has a base offense level of 4. The consolidated guideline 
would have a base offense level of 6, the base offense level most 
typical for regulatory offenses.
    The 1993 Annual Report shows seven cases sentenced under Sec. 2D3.1 
(in all of those it was the primary guideline) and three cases 
sentenced under Sec. 2D3.2 (then Secs. 2D3.2-2D3.5; in all of those 
they were the primary guidelines).
    The 1994 Annual Report (FY 94) shows nine cases sentenced under 
Sec. 2D3.1 (in eight of those it was the primary guideline) and two 
cases sentenced under Secs. 2D3.2-2D3.5 (in both of those they were the 
primary guidelines).
    The 1995 Annual Report (FY 95) shows two cases sentenced under 
Sec. 2D3.1 (in both of those it was the primary guideline) and four 
cases sentenced under Secs. 2D3.2-2D3.5 (in three of those they were 
the primary guidelines).
    Proposed Amendment: Section 2D3.1 is amended in the title by 
deleting ``Registration Numbers'' and inserting in lieu thereof 
``Controlled Substances or Listed Chemicals''.
    The commentary to Sec. 2D3.1 captioned ``Statutory Provisions'' is 
amended by deleting ``842(a)(1), 843(a)(1), (2)'' and inserting in lieu 
thereof ``842(a)(1), (2), (9), (10), (b), 843(a)(1), (2), 954, 961''.
    Section 2D3.2 is deleted in its entirety.
    (I) Consolidation of Secs. 2E2.1 and 2B3.2.
    Synopsis of Proposed Amendment: Sections 2B3.2 (Extortion by Force 
or Threat of Injury or Serious Damage) and 2E2.1 (Making or Financing 
an Extortionate Extension of Credit; Collecting an Extension of Credit 
by Extortionate Means) are consolidated. These guidelines use the same 
basic structure and cover conduct that is in many respects similar. The 
current guidelines have four differences. First, the base offense level 
of Sec. 2B3.2 is 18 with a 2-level adjustment for an express or implied 
threat of death, bodily injury, or kidnapping. The base offense level 
of Sec. 2E2.1 is 20. Second, the offense levels for weapon use 
(originally identical) are now different. (In 1991, the Commission 
increased the adjustments for firearms possession or use in Secs. 2B3.1 
and 2B3.2 but not Sec. 2E2.1).
    Third, Sec. 2B3.2 provides an enhancement for the amount demanded 
or loss to the victim. Section 2E2.1 does not contain this enhancement 
(because there would be substantial difficulty in separating the 
unlawfully demanded interest from the principal and legitimate interest 
that could have been charged). Fourth, Sec. 2B3.2 contains a cross 
reference to the attempted murder guideline; Sec. 2E2.1 does not.
    The consolidated guideline uses the base offense level and 
adjustments from Sec. 2B3.2. A specific offense characteristic is added 
to include a 2-level adjustment for extortionate extension of credit 
and collecting an extension of credit by extortionate means (resulting 
in the same offense level as the current guideline for such conduct). 
In addition, Application Note 1 is amended to provide (as in current 
Sec. 2E2.1) that, in cases involving extortionate extension of credit 
or collecting an extension of credit by extortionate means, subsection 
(b)(2) does not apply to the demand for repayment of principal or 
interest in the case of a loan.
    Under the consolidation, offenses under Sec. 2E2.1 will be subject 
to a weapon enhancement that may be two levels greater, in some cases, 
than is currently provided by the weapon enhancement in Sec. 2E2.1. In 
addition, under the consolidated guideline, the attempted murder cross 
reference in Sec. 2B3.2 and the enhancement in Sec. 2B3.2(b)(3)(B) 
(providing a three-level increase if the offense involved preparation 
or other demonstrated ability to carry out a threat of specified 
unlawful behavior), would now apply to offenses under Sec. 2E2.1.
    The 1993 Annual Report (FY 93) shows 52 cases sentenced under 
Sec. 2B3.2 (in 36 of those it was the primary guideline) and 48 cases 
sentenced under Sec. 2E2.1 (in 31 of those it was the primary 
guideline).
    The 1994 Annual Report (FY 94) shows 129 cases sentenced under 
Sec. 2B3.2 (in 74 of those it was the primary guideline), and 48 cases 
sentenced under Sec. 2E2.1 (in 29 of those it was the primary 
guideline).
    The 1995 Annual Report (FY 95) shows 93 cases sentenced under 
Sec. 2B3.2 (in 52 of those it was the primary guideline), and 62 cases 
sentenced under Sec. 2E2.1 (in 39 of those it was the primary 
guideline).
    Proposed Amendment: Section 2B3.2 is amended in the title by 
inserting at the end ``; Extortionate Extension of Credit; Collecting 
an Extension of Credit by Extortionate Means''.
    Section 2B3.2(b)(2) is amended by inserting at the end the 
following: ``Do not apply this subsection in the case of extortionate 
extension of credit or collecting an extension of credit by 
extortionate means.''.
    Section 2B3.2(b) is amended by inserting the following additional 
subdivision at the end:
    ``(6) If the offense involved extortionate extension of credit or 
collecting an extension of credit by extortionate means, increase by 2 
levels.''.
    Section 2B3.2(c) is amended by inserting the following additional 
subdivision:
    ``(3) If the offense did not involve a threat, express or implied, 
that reasonably could be interpreted as one to injure a person or 
physically damage property, or any comparably serious threat, apply 
Sec. 2B3.3 (Blackmail and Similar Forms of Extortion).''.
    The Commentary to Sec. 2B3.2 captioned ``Statutory Provisions'' is 
amended by inserting ``892-894'' following ``877,''.
    The Commentary to Sec. 2B3.2 captioned ``Statutory Provisions'' is 
amended by inserting ``892-894,'' immediately following ``877''.
    The Commentary to 2B3.2 captioned ``Application Notes'' is amended 
in Note 1 by inserting at the beginning ``For purposes of this 
guideline-'';
    By deleting ``are defined in the commentary to Sec. 1B1.1 
(Application Instructions)'' and inserting in lieu thereof ``have the 
meaning given such terms in [the commentary to] Sec. 1B1.1'';
    And by inserting the following additional paragraph at the end:
    `` `Loss to the victim,' as used in subsection (b)(2), means any 
demand

[[Page 194]]

paid plus any additional consequential loss from the offense (e.g., the 
cost of defensive measures taken in direct response to the offense). 
Subsection (b)(2) does not apply in the case of extortionate extension 
of credit or collecting an extension of credit by extortionate means. 
However, in such a case, if the loss to the victim involved 
consequential loss from the offense, such as damage to an automobile, 
an upward departure may be warranted.''.
    The Commentary to Sec. 2B3.2 captioned ``Application Notes'' is 
amended in Note 3 by deleting the last sentence.
    The Commentary to Sec. 2B3.2 captioned ``Application Notes'' is 
amended by deleting Note 5 in its entirety and renumbering the 
remaining notes accordingly.
    The Commentary to Sec. 2B3.2 captioned ``Background'' is deleted in 
its entirety.
    Section 2E2.1 is deleted in its entirety.
    (J) Consolidation of Secs. 2E5.3 and 2F1.1
    Synopsis of Proposed Amendment: Section 2E5.3 (False Statements and 
Concealment of Facts in Relation to Documents Required by the Employee 
Retirement Income Security Act; Failure to Maintain and Falsification 
of Records Required by the Labor Management Reporting and Disclosure 
Act) and 2F1.1 (Fraud and Deceit; Forgery; Offenses Involving Altered 
or Counterfeit Instruments Other than Counterfeit Bearer Obligations of 
the United States) are consolidated. Section 2E5.3 is an infrequently 
used guideline for what is essentially a false statement offense or a 
failure to maintain records offense that in some cases may be used to 
conceal another offense, generally embezzlement or bribery. 
Consolidation with Sec. 2F1.1 retains the same base offense level, and 
will produce the same final offense level in cases of embezzlement.
    Currently, Application Note 13 of Sec. 2F1.1 describes situations 
in which application of offense guidelines other than Sec. 2F1.1 may be 
more apt. This amendment adds a cross reference to Sec. 2F1.1 to apply 
another offense guideline if the offense conduct is addressed more 
specifically by that guideline and modifies Application Note 13 
accordingly. Application Note 13 is also modified to address the small 
number of cases in which this offense may be committed to conceal a 
bribery offense.
    The 1993 Annual Report (FY 93) shows two cases sentenced under 
Sec. 2E5.3 (in both of those it was the primary guideline) and 5,963 
cases sentenced under Sec. 2F1.1 (in 5,696 of those it was the primary 
guideline).
    The 1994 Annual Report (FY 94) shows 10 cases sentenced under 
Sec. 2E5.3 (in seven of those it was the primary guideline), and 6,235 
cases sentenced under Sec. 2F1.1 (in 5,952 of those it was the primary 
guideline).
    The 1995 Annual Report (FY 95) shows 90 cases sentenced under 
Sec. 2E5.3 (in eight of those it was the primary guideline) and 6,339 
cases sentenced under Sec. 2F1.1 (in 6,019 of those it was the primary 
guideline).
    Proposed Amendment: Section 2E5.3 is deleted in its entirety.
    Section 2F1.1 is amended by inserting the following new subsection:

    ``(c) Cross Reference.
    (1) If the offense conduct is addressed more specifically by 
another offense guideline, apply that offense guideline.''.

    The Commentary to Sec. 2F1.1 captioned ``Statutory Provisions'' is 
amended by deleting ``, 1026, 1028,'' and inserting ``-''; and by 
inserting ``; 29 U.S.C. Secs. 439, 461, 1131'' immediately after 
``2315''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 13 by deleting ``Sometimes,'' and inserting in lieu 
thereof ``Subsection (c)(1) provides a cross reference to another 
offense guideline if that guideline more specifically addresses the 
offense conduct than this section does. For example, sometimes''; by 
inserting ``false statements to secure immigration documents, for which 
Sec. 2L2.1 or Sec. 2L2.2 would be more apt,'' immediately before ``and 
false statements''; by inserting ``Sec. 2S1.3 or'' immediately before 
``Sec. 2T3.1''; and by deleting ``Where the indictment or information 
setting forth the count of conviction (or a stipulation as described in 
Sec. 1B1.2(a)) establishes an offense more aptly covered by another 
guideline, apply that guideline rather than Sec. 2F1.1. Otherwise, in 
such cases, Sec. 2F1.1 is to be applied, but a departure from the 
guidelines may be considered.'' and inserting in lieu thereof: ``In 
certain other cases, an offense involving fraudulent statements or 
documents, or failure to maintain required records, may be committed in 
furtherance of the commission or concealment of another offense, such 
as embezzlement or bribery. In such cases, Sec. 2B1.1 or Sec. 2E5.1 
would be more apt.''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by 
inserting the following new paragraph after the first paragraph:
    ``This guideline also covers the falsification of documents or 
records relating to a benefit plan covered by the Employment Retirement 
Income Security Act and failure to maintain or falsification of 
documents required by the Labor Management Reporting and Disclosure 
Act.''.
    (K) Consolidation of Secs. 2E1.2 and 2E1.3.
    Synopsis of Proposed Amendment: Sections 2E1.2 (Interstate or 
Foreign Travel or Transportation in Aid of a Racketeering Enterprise) 
and 2E1.3 (Violent Crimes in Aid of Racketeering Activity) are 
consolidated. Both have the base offense level for the underlying 
offense as the primary base offense level. Section 2E1.2 has an 
alternative base offense level of 6 and Sec. 2E1.3 has an alternative 
base offense level of 12. Elimination of these alternative base offense 
levels will considerably simplify the operation of these guidelines, 
removing the need in each case for the comparison set forth in 
Application Note 1. In FY 95, 5 of the 24 cases sentenced under 
Sec. 2E1.2 (or 20.8%) had a base offense level of 6, and one of the 19 
cases sentenced under Sec. 2E1.3 (or 5.3%) had a base offense level of 
12.
    The 1993 Annual Report (FY 93) shows 90 cases sentenced under 
Sec. 2E1.2 (in 72 of those it was the primary guideline) and 55 cases 
sentenced under Sec. 2E1.3 (in 26 of those it was the primary 
guideline).
    The 1994 Annual Report (FY94) shows 97 cases sentenced under 
Sec. 2E1.2 (in 77 of those it was the primary guideline), and 48 cases 
sentenced under Sec. 2E1.3 (in 17 of those it was the primary 
guideline).
    The 1995 Annual Report (FY 95) shows 33 cases sentenced under 
Sec. 2E1.2 (in 24 of those it was the primary guideline), and six cases 
sentenced under Sec. 2E1.3 (in three of those it was the primary 
guideline).
    Proposed Amendment: Section Sec. 2E1.2 is amended in the title by 
inserting at the end ``; Violent Crimes in Aid of Racketeering 
Activity''.
    Section Sec. 2E1.2(a) is amended by deleting ``(Apply the 
greater):''; by deleting subsection (1) in its entirety; by deleting 
``(2)''; by deleting ``the'' and inserting in its place ``The''; and by 
deleting ``crime of violence or other unlawful activity in respect to 
which the travel or transportation was undertaken'' and inserting in 
lieu thereof ``offense (crime of violence or racketeering activity)''.
    The Commentary to Sec. 2E1.2 captioned ``Statutory Provision'' is 
amended by deleting ``Provision'' and inserting in lieu thereof 
``Provisions''; by inserting an additional ``Sec. '' immediately 
following the ``Sec. ''; and by inserting at the end ``; 1959 (formerly 
18 U.S.C. 1952B)''.
    The Commentary to Sec. 2E1.2 captioned ``Application Notes'' is 
amended in Note 1 by deleting ``for the purposes of

[[Page 195]]

subsection (a)(2)'' and by deleting the second and third sentences.
    The Commentary to Sec. 2E1.2 captioned ``Application Notes'' is 
amended by deleting Note 3 in its entirety.
    Section 2E1.3 is deleted in its entirety.
    (L) Consolidation of Secs. 2J1.2 and 2J1.3.
    Synopsis of Proposed Amendment: Sections 2J1.3 (Perjury or 
Subornation of Perjury; Bribery of Witness) and 2J1.2 (Obstruction of 
Justice) are consolidated. No substantive change in offense levels 
results from this consolidation. The only difference between the 
current guidelines is that Sec. 2J1.3 contains a special instruction 
pertaining to the grouping of certain separate instances of perjury. 
This special instruction would continue to apply only to cases 
currently covered. This amendment also clarifies the interaction of 
Secs. 2J1.2(c)(1) and 2J1.3(c)(1) with Sec. 2X3.1 and adds an 
Application Note to Sec. 2J1.2 to clarify that the criminal offense the 
investigation or prosecution of which was obstructed need not have been 
specifically charged or resulted in a conviction in order for the cross 
reference to Sec. 2X3.1 to apply.
    In addition, this amendment adds an application note to reemphasize 
that the defendant's conduct need not constitute the offense of 
accessory after the fact in order for the cross reference to Sec. 2X3.1 
to apply. Even though the background and commentary to Sec. 2J1.2 was 
amended in 1991 to clarify that the cross reference to Sec. 2X3.1 could 
apply even if the defendant was a principal to the underlying offense, 
hotline calls indicate there is still some confusion in respect to this 
issue for both Secs. 2J1.2 and 2J1.3 cases.
    The 1993 Annual Report (FY 93) shows 111 cases sentenced under 
Sec. 2J1.2 (in 89 of those it was the primary guideline) and 125 cases 
sentenced under Sec. 2J1.3 (in 109 of those it was the primary 
guideline).
    The 1994 Annual Report (FY 94) shows 137 cases sentenced under 
Sec. 2J1.2 (in 99 of those it was the primary guideline) and 119 cases 
sentenced under Sec. 2J1.3 (in 96 of those it was the primary 
guideline).
    The 1995 Annual Report (FY 95) shows 104 cases sentenced under 
Sec. 2J1.2 (in 82 of those it was the primary guideline) and 78 cases 
sentenced under Sec. 2J1.3 (in 63 of those it was the primary 
guideline).
    Proposed Amendment: Section 2J1.2 is amended in the title by 
inserting ``Perjury or Subornation of Perjury; Witness Bribery;'' 
immediately before ``Obstruction''.
    Section 2J1.2(b)(1) is amended by inserting ``suborn perjury or 
otherwise'' immediately before ``obstruct''.
    Section 2J1.2 is amended by adding the following new subsection:
    ``(d) Special Instruction.
    (1) In the case of counts of perjury or subornation of perjury 
arising from testimony given, or to be given, in separate proceedings, 
do not group the counts together under Sec. 3D1.2 (Groups of Closely 
Related Counts).''.
    The Commentary to Sec. 2J1.2 captioned ``Statutory Provisions'' is 
amended by inserting ``201(b) (3), (4),'' immediately before ``1503,''; 
and by inserting ``, 1621-1623'' immediately following ``1516''.
    The Commentary to Sec. 2J1.2 captioned ``Application Notes is 
amended in Note 2 by deleting ``or'' immediately after 
``investigation'' and inserting a comma in lieu thereof; by deleting 
``of the'' immediately after ``trial'' and inserting in lieu thereof 
``, or sentencing of the perjury, subornation of perjury, witness 
bribery, or''; in Note 5 by inserting ``suborn perjury or'' immediately 
following ``(e.g., to''; and by inserting the following additional 
notes:

    ``6. For purposes of subsection (c)(1), the criminal offense the 
investigation or prosecution of which was obstructed need not have 
been charged or resulted in a conviction.
    Application of subsection (c)(1) does not require that the 
defendant's conduct constitute the offense of accessory after the 
fact. Rather, it provides for the use, in the circumstances 
specified, of the guideline that applies to accessory after the fact 
offenses. Thus, the fact that a defendant cannot be an accessory 
after the fact, under federal law, to an offense in which the 
defendant is a principal does not bar application of this cross 
reference.
    7. `Separate proceedings,' as used in subsection (d)(1), 
includes different proceedings in the same case or matter (e.g., a 
grand jury proceeding and a trial, or a trial and retrial), and 
proceedings in separate cases or matters (e.g., separate trials of 
codefendants), but does not include multiple grand jury proceedings 
in the same case.''.

    The Commentary to Sec. 2J1.2 captioned ``Background'' is amended in 
the first sentence by deleting ``the'' immediately following 
``involving'' and inserting in lieu thereof ``perjury, subornation of 
perjury, witness bribery, and''.
    Section 2J1.3 is deleted in its entirety.
    Issue for Comment: The special instruction currently contained in 
Sec. 2J1.3(d)(1) applies to perjury or subornation of perjury and not 
to obstruction, separate instances of which are more difficult to 
determine. This special instruction was not included in the original 
guideline but was later added to cover the very infrequent perjury case 
to which it applied (approximately six in 40,000 cases). The Commission 
requests comment on whether this historical policy judgment, which was 
limited to perjuries, should be expanded to cover obstructions.
    (M) Consolidation of Secs. 2K1.1 and 2K1.6.
    Synopsis of Proposed Amendment: Sections 2K1.1 and 2K1.6 are 
consolidated. These are regulatory and recordkeeping offenses having 
the same base offense level. The only substantive change resulting from 
the consolidation is that the cross reference in Sec. 2K1.6, which 
directs to apply Sec. 2K1.3 if the offense reflected an effort to 
conceal a substantive offense, would also apply to offenses under 
Sec. 2K1.1. This could result in a change in offense levels for cases 
under Sec. 2K1.1 (offenses under which currently have a statutory 
maximum of one year.) There seems no reason that the cross reference in 
Sec. 2K1.6 (covering conduct reflecting an effort to conceal a 
substantive offense) should not also cover conduct under Sec. 2K1.1.
    The 1993 Annual Report (FY 93) shows no cases sentenced under 
Sec. 2K1.1 or Sec. 2K1.6.
    The 1994 Annual Report (FY 94) shows nine cases sentenced under 
Sec. 2K1.1 (in all of those it was the primary guideline) and no cases 
sentenced under Sec. 2K1.6.
    The 1995 Annual Report (FY 95) shows 11 cases sentenced under 
Sec. 2K1.1 (in all those it was the primary guideline) and no cases 
sentenced under Sec. 2K1.6.
    Proposed Amendment: Section 2K1.1 is amended in the title by 
inserting at the end ``; Licensee Recordkeeping Violations''.
    Section 2K1.1 is amended by adding the following new subsection 
after subsection (a):
    ``(b) Cross Reference:
    (1) If the offense involved an effort to conceal a substantive 
explosive materials offense, apply Sec. 2K1.3 (Unlawful Receipt, 
Possession, or Transportation of Explosives Materials; Prohibited 
Transactions Involving Explosive Materials).''.
    The Commentary to Sec. 2K1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``(f), (g),'' immediately following ``Sec. 842''.
    The Commentary to Sec. 2K1.1 captioned ``Background'' is deleted in 
its entirety.
    Section 2K1.6 is deleted in its entirety.
    (N) Consolidation of Secs. 2L2.2 and 2L2.5.
    Synopsis of Proposed Amendment: Sections 2L2.2 and 2L2.5 are 
consolidated. No change in offense level

[[Page 196]]

will result. Section 2L2.5 covers a rarely prosecuted statute that has 
the same base offense level as Sec. 2L2.2. Section 2L2.2 contains 
additional adjustments, but they do not apply to conduct covered by 
Sec. 2L2.5.
    The 1993 Annual Report (FY 93) shows 186 cases sentenced under 
Sec. 2L2.2 (in 156 of those it was the primary guideline) and no cases 
sentenced under Sec. 2L2.5.
    The 1994 Annual Report (FY 94) shows 266 cases sentenced under 
Sec. 2L2.2 (in 242 of those it was the primary guideline) and no cases 
sentenced under Sec. 2L2.5.
    The 1995 Annual Report (FY 95) shows 402 cases sentenced under 
Sec. 2L2.2 (in 354 of those it was the primary guideline) and no cases 
sentenced under Sec. 2L2.5.
    Proposed Amendment: Section 2L2.2 is amended in the title by 
inserting at the end ``; Failure to Surrender Canceled Naturalization 
Certificate''.
    The Commentary to Sec. 2L2.2 captioned ``Statutory Provisions'' is 
amended by deleting ``1426'' and inserting in lieu thereof ``1427''.
    Section 2L2.5 is deleted in its entirety.
    (O) Consolidation of Secs. 2M2.1 and 2M2.3.
    Synopsis of Proposed Amendment: This amendment consolidates 
Secs. 2M2.1 (Destruction of, or Production of Defective, War Material, 
Premises, or Utilities) and 2M2.3 (Destruction of, or Production of 
Defective, National Defense Material, Premises, or Utilities). [Note: 
The Commission decided in October that it did not wish to propose 
deletion of these two guidelines and their incorporation into 
Sec. 2B1.1 (Theft, Embezzlement, Receipt of Stolen Property, and 
Property Destruction), but the Commission indicated a willingness to 
consider merging the two guidelines into one.] Consolidation is 
appropriate for two reasons. First, prosecutions under these statutes 
are infrequent. In FY 1990 through 1995, there were no cases sentenced 
under these guidelines. Second, although the statutes referenced to 
Secs. 2M2.1 and 2M2.3 cover an extremely wide range of conduct (e.g., 
from major sabotage designed to injure the United States on one hand to 
minor property damage by a disgruntled serviceman or a war protest 
group on the other), the offenses covered by these two guidelines 
essentially are property damage offenses. An option for addressing the 
issue of the appropriate offense level is to add an application note 
explaining the circumstances under which a departure may be warranted.
    Proposed Amendment: Section 2M2.1 is amended by deleting subsection 
(a) in its entirety and inserting the following in lieu thereof:
    (a) Base Offense Level (Apply the greater):
    (1) 32, if the defendant is convicted (A) under 18 U.S.C. Sec. 2153 
or Sec. 2154; or (B) under 42 U.S.C. Sec. 2284 of acting with intent to 
injure the United States or aid a foreign nation; or
    (2) 26, otherwise.
    The Commentary to Sec. 2M2.1 captioned ``Statutory Provisions'' is 
amended by inserting an additional ``Sec. '' immediately following the 
``Sec. ''; and by deleting ``2154'' and inserting in lieu thereof ``-
2156''.
    The Commentary to Sec. 2M1.1 captioned ``Application Note'' is 
amended by deleting Note 1 in its entirety and inserting the following 
in lieu thereof:
    [1. Because this section covers a particularly wide range of 
conduct, it is not possible to include all of the potentially relevant 
circumstances in the offense level. Therefore, depending on the 
circumstances of the case, an upward or a downward departure may be 
warranted. For example, if the defendant was convicted under 18 U.S.C. 
Sec. 2155 of throwing paint on defense equipment or supplies as an act 
of protest during peacetime, the offense level in subsection (a)(2) may 
overrepresent the seriousness of the offense. In that case, a downward 
departure may be warranted. However, if the defendant was convicted 
under 18 U.S.C. Sec. 2153 of major sabotage of arms and munitions while 
the United States was at war, the offense level in subsection (a)(1) 
may underrepresent the seriousness of the offense. In that case, an 
upward departure may be warranted. Factors to be considered in 
determining the extent of the departure include whether the offense was 
committed while the United States was at war, whether the purpose of 
the offense was to injure the United States or aid a foreign nation or 
power, whether a substantial risk of death or physical injury was 
created, and the extent to which national security was threatened. See 
Chapter Five, Part K (Departures).]
    Section 2M2.3 is deleted in its entirety.
    (P) Deletion of Sec. 2M3.4.
    Synopsis of Proposed Amendment: This amendment deletes Sec. 2M3.4 
(Losing National Defense Information) as unnecessary and potentially 
counterproductive. This guideline covers an extremely rarely prosecuted 
offense. There have been no sentences recorded under this section since 
the guidelines took effect. Given that this offense could occur in a 
variety of circumstances (as well as could be used as a plea bargain 
offense for a more serious offense), it seems questionable whether the 
current Sec. 2M3.4 is adequate to provide an appropriate result. Given 
the rarity of this offense, deletion of this offense guideline is 
recommended. Any offenses currently handled under this section will be 
addressed by Sec. 2X5.1 (Other Offenses).
    The 1993 Annual Report (FY 93) shows no cases sentenced under 
Sec. 2M3.4.
    The 1994 Annual Report (FY 94) shows no cases sentenced under 
Sec. 2M3.4.
    The 1995 Annual Report (FY 95) shows no cases sentenced under 
Sec. 2M3.4.
    Proposed Amendment: Section 2M3.4 is deleted in its entirety.
    (Q) Consolidation of Secs. 2M3.5 and 2M6.2.
    Synopsis of Proposed Amendment: Sections 2M3.5 (Tampering with 
Restricted Data Concerning Atomic Energy) and 2M6.2 (Violation of Other 
Federal Atomic Energy Agency Statutes, Rules, and Regulations) are 
rarely used guidelines that cover conduct relating to atomic energy. 
Currently, there seems to be some inconsistency in the offense levels 
between these guidelines. It is not clear why tampering with restricted 
data concerning atomic energy has an offense level of 24 (even if done 
with intent to injure the United States or aid a foreign nation) while 
violations of other federal atomic energy statutes, rules, or 
regulations have an offense level of 30 if committed with intent to 
injure the United States or aid a foreign nation. This amendment would 
remove this inconsistency by consolidating these guidelines. However, 
offenses that involve tampering with restricted data (which currently 
receive an offense level of 24) would receive an offense level of 30 if 
the offense were committed with intent to injure the United States or 
aid a foreign nation.
    The 1993 Annual Report (FY 93) shows no cases sentenced under 
Sec. 2M3.5, and five cases sentenced under Sec. 2M6.2 (in four of those 
it was the primary guideline).
    The 1994 Annual Report (FY 94) shows no cases sentenced under 
Sec. 2M3.5, and two sentences under Sec. 2M6.2 (in one of those it was 
the primary guideline).
    The 1995 Annual Report (FY 95) shows no cases sentenced under 
Sec. 2M3.5 and three cases sentenced under Sec. 2M6.2 (in all of those 
it was the primary guideline).

[[Page 197]]

    Proposed Amendment: Section 2M6.2 is amended in the title by 
inserting ``Tampering With Restricted Data Concerning Atomic Energy;'' 
immediately before ``Violation''.
    Section 2M6.2(a) is amended by deleting ``Greater'' and inserting 
in lieu thereof ``Greatest''; by renumbering subdivision (2) as 
subdivision (3) and inserting the following as subdivision (2):
    ``(2) 24, if the offense involved tampering with restricted data 
concerning atomic energy; or''.
    The Commentary to Sec. 2M6.2 captioned ``Statutory Provision'' is 
amended by deleting ``Provision'' and inserting in lieu thereof 
``Provisions''; by inserting ``Sec. '' immediately before ``2273''; and 
by inserting ``, 2276'' immediately following ``2273''.
    The Commentary to Sec. 2M6.2 is amended by inserting the following 
immediately before ``Background'':


    ``Application Note:
    1. For purposes of this guideline, `tampering with restricted 
data concerning atomic energy'' means conduct proscribed by 18 
U.S.C. Sec. 2276.''.


    Section 2M3.5 is deleted in its entirety.
    (R) Consolidation of Secs. 2N3.1 and 2F1.1.
    Synopsis of Proposed Amendment: Section 2N3.1 (Odometer Laws and 
Regulations) is consolidated with Sec. 2F1.1 (Fraud and Deceit; 
Forgery; Offenses Involving Altered or Counterfeit Instruments Other 
Than Counterfeit Bearer Obligations of the United States). Currently, 
Sec. 2N3.1 has the same base offense level as Sec. 2F1.1 and is cross-
referenced to Sec. 2F1.1 if more than one vehicle was involved (one 
vehicle cases are infrequent). Under this consolidation, fraud by 
odometer tampering involving one vehicle will be treated the same as 
other fraud (i.e., the specific offense characteristics for loss and 
more than minimal planning will apply, if warranted). There seems no 
reason to treat this type of fraud differently than other types of 
fraud.
    The 1993 Annual Report (FY 93) shows 5,963 cases sentenced under 
Sec. 2F1.1 (in 5,696 of those it was the primary guideline) and 17 
cases sentenced under Sec. 2N3.1 (in all of those it was the primary 
guideline).
    The 1994 Annual Report (FY 94) shows 6,235 cases sentenced under 
Sec. 2F1.1 (in 5,952 of those it was the primary guideline) and eight 
cases sentenced under Sec. 2N3.1 (in seven of those it was the primary 
guideline).
    The 1995 Annual Report (FY 95) shows 6,339 cases sentenced under 
Sec. 2F1.1 (in 6,019 of those it was the primary guideline) and two 
cases sentenced under Sec. 2N3.1 (in both of those it was the primary 
guideline).
    Proposed Amendment: The Commentary to Sec. 2F1.1 captioned 
``Statutory Provisions'' is amended by inserting ``, 1983-1988, 1990c'' 
immediately following ``1644''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by 
inserting as a new paragraph after the first paragraph:
    ``This guideline also covers offenses relating to odometer laws and 
regulations.''.
    Section 2N3.1 is deleted in its entirety.
    (S) Consolidation of Secs. 2T1.1 and 2T1.6.
    Synopsis of Proposed Amendment: Sections 2T1.1 (Tax Evasion; 
Willful Failure to File Return, Supply Information, or Pay Tax; 
Fraudulent or False Returns, Statements, or Other Documents) and 2T1.6 
(Failing to Collect or Truthfully Account for and Pay Over Tax) are 
consolidated. Section 2T1.6 is an infrequently prosecuted tax offense 
involving an employer failing to collect or truthfully account for any 
pay over tax.
    Both guidelines have the same base offense level. In most cases, 
there will be no change in offense level, which is based on the tax 
loss, because sections 2T1.1(b) (1) and (2) will not apply to conduct 
under Sec. 2T1.6. However, currently Sec. 2T1.6 contains a cross 
reference to Sec. 2B1.1 (Larceny, Embezzlement, and Other Forms of 
Theft) if the offense involved embezzlement by withholding tax from an 
employee's earnings and willfully failing to account to the employee 
for it. Application of that cross reference could result in offense 
levels one or two levels greater for offenses under Sec. 2T1.6. That 
cross reference no longer exists under the consolidation, and the 
consolidation does not provide an enhancement for offenses involving 
embezzlement.
    The 1993 Annual Report (FY 93) shows 302 cases sentenced under 
Sec. 2T1.1 (in 225 of those it was the primary guideline) and five 
cases sentenced under Sec. 2T1.6 (in all of those it was the primary 
guideline).
    The 1994 Annual Report (FY 94) shows 528 cases sentenced under 
Sec. 2T1.1 (in 413 of those it was the primary guideline) and no cases 
sentenced under Sec. 2T1.6.
    The 1995 Annual Report (FY 95) shows 517 cases sentenced under 
Sec. 2T1.1 (in 405 of those it was the primary guideline) and five 
cases sentenced under Sec. 2T1.6 (in all of those it was the primary 
guideline).
    Proposed Amendment: Section 2T1.1 is amended in the title by 
inserting ``; Failing to Collect or Truthfully Account for and Pay Over 
Tax'' immediately following ``Documents''.
    Section 2T1.1(c) is amended by renumbering subdivision (5) as 
subdivision (6) and by inserting the following as a new subdivision 
(5):
    ``(5) If the offense involved failing to collect or truthfully 
account for any pay over tax, the tax loss is the amount of tax not 
collected or accounted for and paid over.''.
    Section 2T1.6 is deleted in its entirety.
    (T) Consolidation of Secs. 2E4.1, 2T2.1, and 2T2.2.
    Synopsis of Proposed Amendment: Sections 2E4.1 (Unlawful Conduct 
Relating to Contraband Cigarettes), 2T2.1 (Non-Payment of [Alcohol and 
Tobacco] Taxes), and 2T2.2 (Regulatory Offenses) and are consolidated. 
This amendment consolidates three infrequently applied guidelines.
    Under this consolidation, the base offense level for Sec. 2T2.2 is 
raised from four to six, which is the base offense most typical for 
regulatory offenses. Otherwise, there is no substantive change.
    The 1993 Annual Report shows no cases sentenced under Sec. 2E4.1, 
seven cases sentenced under Sec. 2T2.1 (in five of those it was the 
primary guideline), and no cases sentenced under Sec. 2T2.2.
    The 1994 Annual Report (FY94) shows 10 cases sentenced under 
Sec. 2E4.1 (in six of those it was the primary guideline), four cases 
sentenced under Sec. 2T2.1 (in one of those it was the primary 
guideline), and no cases sentenced under Sec. 2T2.2.
    Proposed Amendment: Chapter Two, Part T, Subpart 2 captioned 
``Introductory Commentary'' is deleted in its entirety.
    Section 2T2.1 is amended by deleting it in its entirety and 
inserting in lieu thereof:
    Sec. 2T2.1. Non-Payment of Taxes; Regulatory Offenses.
    (a) Base Offense Level (Apply the Greatest):
    (1) Level from Sec. 2T4.1 (Tax Table) corresponding to the tax 
loss;
    (2) 9, if the offense involved contraband cigarettes; or
    (3) 6, if there is no tax loss.
    (b) Special Instruction.
    (1) For purposes of this guideline, the ``tax loss'' is the total 
amount of taxes on the alcohol or tobacco that the taxpayer failed to 
pay, evaded, or attempted to evade.

[[Page 198]]

Commentary

    Statutory Provisions: 18 U.S.C. Secs. 2342(a), 2344(a); 26 
U.S.C. Secs. 5601, 5603-5605, 5661, 5671, 5762. For additional 
statutory provision(s), see Appendix A (Statutory Index).

    Application Notes:
    1. In the case of contraband cigarettes (as defined in 18 U.S.C. 
Sec. 2341 (2)), the tax loss is the total amount of unpaid state 
excise taxes on the cigarettes.
    2. Offense conduct directed at more than tax evasion (e.g., 
theft or fraud) may warrant an upward departure.
    Background: This section covers a variety of offenses involving 
alcohol and tobacco, including evasion of alcohol and tobacco taxes, 
evasion of state excise taxes on cigarettes, operating an illegal 
still, and regulatory offenses.''

    Sections 2E4.1 and 2T2.2 are deleted in their entirety.

[FR Doc. 96-33157 Filed 12-31-96; 8:45 am]
BILLING CODE 2210-40-P